4A. Application of Financial Management Act 2006 and Auditor General Act 2006 4
Levy to be paid to courts 4
Department to advise Treasurer of number of processes upon which levy payable 5
Payment from Fund only on direction of Board 5
Appeal Costs Board, constitution 6
Board meetings 7
Successful appeal on question of law, indemnity certificate may be granted 8
Indemnity certificate entitles respondent to costs from the Fund 8
Indemnity certificate vacated or inoperative in certain circumstances 10
12A. Costs of trial where conviction quashed without new trial may be met from Fund; cost certificates 12
No appeal lies against grant or refusal of certificate 14
Costs of new trial etc. where proceedings aborted etc. due to no fault of party may be met from Fund 14
14A. Costs of legal representation of infant may be met from Fund 17
14B. Costs of trial etc. where court refuses to approve settlement may be met from Fund 17
Costs of appeal etc. where award of damages overturned on appeal may be met from Fund 19
15A. Subsidiary and related corporations 21
Protection from personal liability 21
Regulations 21
Review of Act 22
Notes
Compilation table 23
Other notes 25
Defined terms
Western Australia
Suitors’ Fund Act 1964
An Act to make provision in respect of the liability for costs of certain litigation; to establish a Suitors’ Fund to meet that liability; and for incidental and other purposes.
1. Short title
This Act may be cited as the Suitors’ Fund Act 1964.
Section 1 - Suitors' Fund Act 1964 - Suitors' Fund Act 1964 | Zoe
2. Commencement
(1) Subject to subsection (2), this Act shall come into operation on a date to be fixed by proclamation.
(2) It shall not be necessary to proclaim that the whole Act shall come into operation on one day, but the several sections of this Act may be proclaimed to come into operation on such days as are respectively fixed by proclamation.
3. Terms used
In this Act unless the contrary intention appears —
appeal includes any proceeding by way of discharging or setting aside a judgment, a motion for a new trial, a case stated for the opinion of the Supreme Court on a question of law, an appeal under Part 2 of the Criminal Appeals Act 2004, and any other proceeding in the nature of an appeal;
company has the same meaning as it has in the Corporations Act 2001 of the Commonwealth;
costs in relation to an appeal includes the costs of an application for an indemnity certificate or a costs certificate in respect of the appeal, but does not include costs incurred in a court of first instance except where otherwise expressly provided;
costs certificate means a costs certificate granted under section 12A;
Department means the department of the Public Service principally assisting the Minister in the administration of this Act;
foreign company means a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, and a registrable Australian body (within the meaning of that Act) other than such a body formed or incorporated in the State;
indemnity certificate means an indemnity certificate granted under section 10;
sequence of appeals means a sequence of appeals in which each appeal that follows the last preceding appeal in the sequence is an appeal against the decision in the last preceding appeal;
the Board means the Appeal Costs Board constituted under this Act;
the Fund means the Suitors’ Fund established under this Act.
[Section 3 amended: No. 72 of 1969 s. 2; No. 57 of 1971 s. 3; No. 10 of 1982 s. 28; No. 58 of 1984 s. 2; No. 31 of 1993 s. 65; No. 34 of 1999 s. 61; No. 20 of 2003 s. 46; No. 59 of 2004 s. 141; No. 84 of 2004 s. 78.]
4. Suitors’ Fund established
(1) An agency special purpose account called the Suitors’ Fund is established under section 16 of the Financial Management Act 2006.
(2) The following shall be credited to the Fund —
(a) the amounts referred to in section 6(2);
(b) any other moneys lawfully received by, made available to, or payable to the Board.
(3) The amounts referred to in sections 11, 14, 14A, 14B, and 15 and the cost of the administration of this Act shall be charged to the Fund.
(4) All interest derived from the investment of the Fund forms part of the Fund.
(5) The Fund is, subject to this Act, under the direction, control and management of the Board.
(6) Where the Board certifies in writing to the Treasurer that the amount of money standing to the credit of the Fund is, for the time being, insufficient for the purposes of this Act, the Board may borrow from the Treasurer such amounts as are sufficient for the time being to make up the deficiency.
(7)(a) Any amount advanced to the Fund pursuant to subsection (6) shall be subsequently repaid to the Treasurer from moneys standing to the credit of the Fund by the Board, when money is available to the Fund to make the repayment.
(b) The amount of any money so advanced by the Treasurer to the Fund is, while the money remains unpaid, a charge on the Fund.
(8) Where the Board certifies in writing to the Treasurer that any money standing to the credit of the Fund is not immediately required for the purposes of this Act the Treasurer may temporarily invest so much of the money as he considers practicable so to do, as trust funds may be invested under Part III of the Trustees Act 1962 and shall cause all interest therefrom to be credited to the Fund.
(9) The accounts relating to the Fund shall be audited by the Auditor General.
[Section 4 amended: No. 44 of 1977 s. 3; No. 58 of 1984 s. 3; No. 98 of 1985 s. 3; No. 49 of 1996 s. 64; No. 1 of 1997 s. 18; No. 28 of 2006 s. 47; No. 77 of 2006 Sch. 1 cl. 164(1) and (2).]
4A. Application of Financial Management Act 2006 and Auditor General Act 2006
The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of departments apply to and in respect of the department and the Fund.
[Section 4A inserted: No. 98 of 1985 s. 3; amended: No. 31 of 1993 s. 66; No. 77 of 2006 Sch. 1 cl. 164(3).]
5. Levy to be paid to courts
(1) There shall be paid to the proper officer of the appropriate court —
(a) upon the issue of any writ of summons whereby an action is commenced in the Supreme Court or The District Court of Western Australia;
(b) upon the commencement of any case in the Magistrates Court under the Magistrates Court (Civil Proceedings) Act 2004; or
(c) upon the issue of any summons or court hearing notice under the Criminal Procedure Act 2004 in respect of a prosecution notice to be dealt with by a court of summary jurisdiction,
in addition to any fee which may be payable in respect thereof under any Act or rules of any court, a levy of an amount prescribed by the regulations.
(1A) The levy is imposed.
(2) The words “or The District Court of Western Australia”, in subsection (1)(a), are deemed to have been included therein on and from 1 April 1970.
(3) The regulations may prescribe different amounts of levy for different processes or classes of process.
(4) Nothing in this section is to be taken as limiting the operation of the Interpretation Act 1984 section 43.
[Section 5 amended: No. 113 of 1965 s. 8; No. 57 of 1971 s. 4; No. 59 of 2004 s. 141; No. 84 of 2004 s. 78; No. 8 of 2019 s. 4; No. 9 of 2019 s. 4.]
6. Department to advise Treasurer of number of processes upon which levy payable
(1) During the months of January, April, July and October of each year, the chief executive officer of the department shall cause to be prepared and sent to the Treasurer, a statement signed by him, specifying the total number of processes referred to in section 5, upon which a levy is payable under this Act, that appear from records in the custody or control of the department, to have been issued out of or returnable in the Supreme Court, The District Court of Western Australia, the Children’s Court or the Magistrates Court during the period of 3 months immediately preceding the first day of the month in which the statement is prepared.
(2) The Treasurer shall, as soon as practicable after the receipt by him of the statement referred to in subsection (1), cause to be charged to the Consolidated Account (which is hereby to the necessary extent appropriated accordingly) and credited to the Fund, an amount equal to the total sum of the levy payable under section 5 that is credited to the Consolidated Account in respect of the processes specified in the statement.
[Section 6 amended: No. 58 of 1978 s. 2; No. 98 of 1985 s. 3; No. 6 of 1993 s. 11; No. 31 of 1993 s. 67; No. 49 of 1996 s. 64; No. 59 of 2004 s. 141; No. 77 of 2006 s. 4; No. 8 of 2019 s. 5.]
7. Payment from Fund only on direction of Board
(1) Payment shall not be made out of moneys standing to the credit of the Fund except upon and in accordance with a written direction of the Board.
(2) The Board shall not issue such a direction unless it is satisfied that the payment from moneys standing to the credit of the Fund to which the direction relates is authorised by or under this Act and that the provisions of this Act relating to any claim for the payment have been complied with.
[Section 7 amended: No. 49 of 1996 s. 64.]
8. Appeal Costs Board, constitution
(1) For the purposes of this Act there shall be a Board to be called the “Appeal Costs Board”.
(2) The Board shall consist of 3 members appointed by the Governor of whom —
(a) one shall be appointed as Chairman of the Board;
(b) one shall be a person who is nominated in writing by the Law Society of Western Australia (Inc.) and who is willing to act as a member of the Board; and
(c) one shall be a person who is nominated in writing by the Legal Practice Board established by the Legal Profession Uniform Law Application Act 2022 section 30 and who is so willing.
(3) If either of the bodies referred to in subsection (2) does not within 30 days after being requested in writing by the Minister so to do, submit a nomination of a person as member of the Board, the Minister may, without the nomination, appoint an otherwise eligible person to be a member of the Board to represent the interests of the body in default and the person so appointed shall for all purposes be deemed to be duly appointed.
(4) The Governor may at any time remove any person appointed to the Board and appoint another otherwise eligible person in his stead to represent, where the case requires, the interests of the body represented by the member in whose place he is appointed.
(5) Each member appointed to the Board including the Chairman thereof, is entitled to hold office for such term not exceeding 3 years as the Governor specifies at the time of his appointment and is eligible for reappointment.
(6) The exercise or performance of the functions or powers of the Board is not affected by reason only of there being a vacancy in the office of a member.
[Section 8 amended: No. 65 of 2003 s. 68(2); No. 74 of 2003 s. 114; No. 21 of 2008 s. 708; No. 9 of 2022 s. 424.]
9. Board meetings
(1) The Chairman shall preside at all meetings of the Board at which he is present.
(2) At a meeting of the Board 2 members constitute a quorum.
(3) A question arising at a meeting of the Board shall be decided by a majority of the votes of the members present.
(4) Where 2 members only are present at a meeting of the Board, if those members differ in opinion upon any question the decision on the question shall be deferred to a meeting of the Board at which all 3 members thereof are present.
(5) Subject to this Act the Board may regulate its own proceedings.
(6) The functions of the Board are —
(a) to exercise and discharge the powers, authorities, duties, functions and obligations conferred and imposed on the Board by or under this Act; and
(b) to advise the Minister upon any matter submitted by him to the Board for its advice that relates to the operation of this Act.
(7) There may be appointed by the Governor a Secretary to the Board and such other officers as are necessary for carrying out the objects of this Act.
10. Successful appeal on question of law, indemnity certificate may be granted
(1) Where an appeal against the decision of a court in any proceedings —
(a) to the Supreme Court;
(b) to the High Court of Australia from a decision of the Supreme Court;
(c) to the Queen in Council from a decision of the High Court of Australia given in an appeal from a decision of the Supreme Court; or
(d) to the Queen in Council from a decision of the Supreme Court,
on a question of law succeeds, the Supreme Court may, upon application made to the Court in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal an indemnity certificate in respect of that appeal.
(2) Whenever an appeal against the decision of a court in any proceedings to The District Court of Western Australia on a question of law succeeds, The District Court of Western Australia may, upon application made to it in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal an indemnity certificate in respect of that appeal.
(3) The jurisdiction conferred upon the Supreme Court or The District Court of Western Australia by subsection (1) or (2) may be exercised by a judge of the Supreme Court or a District Court judge, as the case may be, sitting in chambers.
[Section 10 amended: No. 72 of 1969 s. 3; No. 58 of 1978 s. 3.]
11. Indemnity certificate entitles respondent to costs from the Fund
(1) Subject to this Act, where a respondent to an appeal has been granted an indemnity certificate, the certificate entitles the respondent to be paid from moneys standing to the credit of the Fund —
(a) an amount equal to the appellant’s costs —
(i) of the appeal in respect of which the indemnity certificate was granted; and also
(ii) where that appeal is an appeal in a sequence of appeals, of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate of indemnity was granted,
ordered to be paid and actually paid by the respondent;
(b) an amount equal to the respondent’s costs —
(i) of the appeal in respect of which the certificate was granted; and also
(ii) where that appeal is an appeal in a sequence of appeals, of an appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,
as taxed or agreed upon by the Board and the respondent or the respondent’s solicitor and not ordered to be paid by any other party; and
(c) where the costs referred to in paragraph (b) are taxed at the instance of the respondent an amount equal to the costs incurred by the respondent in having the costs taxed.
(2) Where an indemnity certificate has been granted, and the Board is satisfied —
(a) that the respondent unreasonably refuses or neglects or is unable through lack of means to pay to the appellant the costs referred to in subsection (1)(a) or any part of those costs; or
(b) that payment of those costs or part of those costs would cause the respondent, undue hardship; or
(c) that the respondent cannot be found and the costs or part of those costs have not already been paid by the respondent and the certificate of taxation in respect thereof is produced to the Board,
the Board may direct in writing that an amount equal to those costs or to the part of those costs not already paid by the respondent be paid from moneys standing to the credit of the Fund for and on behalf of the respondent to the appellant, and thereupon the appellant is entitled to payment from moneys standing to the credit of the Fund in accordance with the direction of the Board and the Fund is discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction.
(3) Notwithstanding the foregoing provisions of this section —
(a) the aggregate of the amounts payable from moneys standing to the credit of the Fund pursuant to paragraphs (b) and (c) of subsection (1) shall not exceed the amount payable from moneys standing to the credit of the Fund pursuant to paragraph (a) of that subsection; and
(b) the amount payable from moneys standing to the credit of the Fund to any one respondent pursuant to an indemnity certificate shall not in any case exceed the sum of $1 000 or such other amount as may from time to time be prescribed.
[Section 11 amended: No. 113 of 1965 s. 8; No. 49 of 1996 s. 64.]
12. Indemnity certificate vacated or inoperative in certain circumstances
(1) An indemnity certificate granted to a respondent in respect of an appeal, being an appeal in a sequence of appeals, is vacated if —
(a) in a later appeal in the sequence the successful party to the appeal is the one to whom the indemnity certificate was granted; or
(b) an indemnity certificate is granted in respect of a later appeal in the sequence and the respondent to the earlier appeal is a party to the later appeal.
(2) An indemnity certificate granted to a respondent in respect of an appeal —
(a) where a time is limited for appealing against the decision in the appeal, is inoperative during the time so limited;
(b) where a time is not limited for appealing against the decision in the appeal, is inoperative until an application for leave to appeal against that decision has been determined and where leave to appeal is granted, until the appeal is instituted, or until the respondent lodges with the Board a written undertaking by him that he will not apply for leave to appeal or appeal against the decision in the appeal, whichever first happens; and
(c) is, where the decision in the appeal is the subject of an appeal, inoperative during the pendency of the appeal notwithstanding the foregoing provisions of this subsection.
(3) Where the appeal and a later appeal or later appeals form a sequence of appeals and the indemnity certificate has not been vacated under subsection (1), any reference in subsection (2) —
(a) to the decision in the appeal shall be construed as including a reference to the decision in the later appeal or in each such later appeal, as the case may be; and
(b) to the pendency of the appeal shall be construed as including a reference to the pendency of the later appeal or of each such later appeal, as the case may be.
(4)(a) Where an undertaking has been given by a respondent under subsection (2)(b) and thereafter the respondent applies for leave to appeal or appeals against the decision in respect of which the undertaking was given, the respondent shall, upon written demand being made in that behalf by the Board, pay to the Board any amount paid to him, or for and on his behalf under the indemnity certificate and in default of payment of the amount by the respondent in accordance with the demand, that amount may be recovered by the Board from the respondent as a debt in any court of competent jurisdiction.
(b) Any amount paid to or recovered by the Board under this subsection shall be credited by it to the Fund.
(5) Nothing in this section affects the operation of subsection (1).
[Section 12 amended: No. 49 of 1996 s. 64.]
12A. Costs of trial where conviction quashed without new trial may be met from Fund; cost certificates
(1) Where after the coming into operation of the Suitors’ Fund Act Amendment Act 1971, on an appeal against a conviction for an indictable offence the conviction is quashed without a new trial being ordered, the Supreme Court may, upon application made to it in that behalf, grant to the appellant a costs certificate in respect of the costs of the appeal or such part of those costs as the Court may determine.
(2) Where after the coming into operation of the Suitors’ Fund Act Amendment Act 1971, an appeal on a question of law succeeds and the court that allowed the appeal would, but for the provisions of some other Act or law, have ordered costs of the appeal, fixed or to be taxed, or some proportion thereof, to be paid by the respondent —
(a) that court shall make a finding to that effect and shall specify the amount of costs it would have fixed or state that it would have directed them to be taxed, or what proportion of the taxed costs it would have ordered to be paid, as the case requires; and
(b) the Supreme Court may, upon application made to it in that behalf, grant a costs certificate to the appellant and, if so, shall include in it the substance of the finding referred to in paragraph (a).
(3) The jurisdiction of the Supreme Court to grant a costs certificate may be exercised by a judge sitting in chambers.
(4) Subject to this Act, where an appellant has been granted a costs certificate, the certificate shall entitle the appellant to be paid from moneys standing to the credit of the Fund —
(a) if the certificate was granted under subsection (1) —
(i) an amount equal to the appellant’s costs of the appeal in respect of which the certificate was granted as taxed or agreed upon by the Board and the appellant or the appellant’s solicitor, or equal to such part of those costs as the Supreme Court has determined, as the case requires; and
(ii) where the costs referred to in subparagraph (i) are taxed, an amount equal to the costs incurred by the appellant in having those costs taxed;
or
(b) if the certificate was granted under subsection (2) —
(i) the amount of costs of the appeal which the Court that allowed the appeal would have ordered to be paid by the respondent; or
(ii) the taxed costs of the appeal, or such proportion of the taxed costs as that Court would have ordered to be paid by the respondent, including the costs incurred by the appellant in having those costs taxed, or in lieu of the taxed costs or that proportion of them an amount agreed upon by the Board and the appellant or the appellant’s solicitor,
as the case requires.
(5) The amount payable from moneys standing to the credit of the Fund to any one appellant pursuant to a costs certificate shall not in any case exceed the sum of $1 000 or such other amount as may from time to time be prescribed.
[Section 12A inserted: No. 57 of 1971 s. 5; amended: No. 49 of 1996 s. 64.]
13. No appeal lies against grant or refusal of certificate
(1) In the case of an application for —
(a) an indemnity certificate, The District Court of Western Australia or the Supreme Court; or
(b) a costs certificate, the Supreme Court,
may grant or refuse that application and no appeal lies against that grant or refusal.
(2) An indemnity certificate shall not be granted in respect of an appeal from proceedings begun in a court of first instance before the coming into operation of this Act.
(3) An indemnity certificate or a costs certificate shall not be granted in favour of the Crown or a company or foreign company that has a paid up capital of or equivalent to $200 000 or more.
[Section 13 amended: No. 113 of 1965 s. 8; No. 57 of 1971 s. 6; No. 58 of 1978 s. 4.]
14. Costs of new trial etc. where proceedings aborted etc. due to no fault of party may be met from Fund
(1) Where after the coming into operation of this Act —
(a) any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge, magistrate or justice before whom the proceedings were had or by disagreement on the part of the jury where the proceedings are with a jury; or
(b) an appeal on a question of law against the conviction of a person (in this section called the appellant) convicted on indictment or summarily is upheld and a new trial is ordered; or
(ba) an appeal commenced by a prosecutor under section 24(2)(da) or 25(3)(aa) of the Criminal Appeals Act 2004 is upheld and a new trial is ordered; or
(c) the hearing of any civil or criminal proceeding is discontinued and a new trial is ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default in the case of civil proceedings of all or any one or more of the parties thereto or their counsel or solicitors, or, in the case of criminal proceedings, of the accused or his counsel or solicitor, and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant —
(i) in the case of civil proceedings — to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of all or any one or more of the parties to the proceedings or their counsel or solicitors; or
(ii) in the case of criminal proceedings — to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,
or where after the coming into operation of the Suitors’ Fund Act Amendment Act 1971 —
(d) a criminal proceeding in any court is adjourned by or on behalf of the prosecution and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant if he is satisfied that by reason of the adjournment the accused has necessarily incurred expense, to the accused stating the reason why the proceedings were adjourned and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,
and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial or as a consequence of the adjournment, then the Board may, upon application made to it in that behalf, direct the payment from moneys standing to the credit of the Fund to the party or the accused or the appellant, as the case may be, of the costs or such part thereof, as the Board may determine incurred by the party or the accused or the appellant in the proceedings before they were rendered abortive or were adjourned or the conviction was quashed or the hearing of the proceedings was so discontinued.
(1a) For the purposes of this section a criminal proceeding is deemed to have been adjourned where the prosecution has notified the accused or his counsel or solicitor that a date has been fixed for the hearing of the proceedings and the proceeding is, without his consent, not listed for hearing on that day.
(1b) An application for a certificate under subsection (1) with respect to the adjournment of a criminal proceeding may be made when the proceedings come on for hearing and a certificate may then be granted in accordance with the provisions of subsection (1)(d).
(2) An amount shall not be paid from moneys standing to the credit of the Fund under this section to the Crown or to a company or foreign company that has a paid up capital of or equivalent to $200 000 or more.
[Section 14 amended: No. 113 of 1965 s. 8; No. 72 of 1969 s. 4; No. 57 of 1971 s. 7; No. 49 of 1996 s. 64; No. 84 of 2004 s. 80; No. 2 of 2008 s. 71.]
14A. Costs of legal representation of infant may be met from Fund
(1) Where after the coming into operation of the Legal Representation of Infants Act 1977 1, a guardian ad litem is appointed pursuant to that Act to represent the interests of an infant in any proceedings and the court orders that the costs of such representation, or any portion of such costs, shall be charged to the Suitors’ Fund the court shall specify the amount of the costs to be so charged or direct them to be taxed and specify the proportion of the taxed costs so to be charged and the order shall thereupon entitle the guardian ad litem to be paid from moneys standing to the credit of the Fund —
(a) the amount so specified; or
(b) an amount equal to that proportion of the costs as so taxed, together with such further costs as may be incurred by him in having the costs of the proceedings so taxed; or
(c) an amount agreed upon by the Board and the solicitor representing the guardian ad litem.
(2) Notwithstanding the provisions of subsection (1), the amount payable from moneys standing to the credit of the Fund in respect of any proceedings where an order is so made shall not in any case exceed $1 000 or such other amount as may from time to time be prescribed.
[Section 14A inserted: No. 44 of 1977 s. 4; amended: No. 49 of 1996 s. 64.]
14B. Costs of trial etc. where court refuses to approve settlement may be met from Fund
(1) In this section —
person under a disability means —
(a) an infant;
(b) a person in respect of whom an administration order is in force under Part 6 of the Guardianship and Administration Act 1990; and
(c) a person who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates;
settlement includes a compromise of an action or of an appeal, acceptance of money paid into court and an acceptance of an offer to consent to judgment.
(2) Where in any action or appeal —
(a) there is a claim or appeal by or on behalf of a person under disability;
(b) the person under disability or his next friend has applied to the court for an order approving the proposed settlement;
(c) the court refuses to approve the proposed settlement;
(d) on trial of the action or in an appeal brought in relation thereto the amount awarded is not more than the amount offered in the proposed settlement; and
(e) the person under disability or his next friend is ordered to pay the whole or any part of the costs of the action or appeal on any ground,
the court before which the action is tried, or the court by which the appeal is heard, as the case may be, may, upon application made to it in that behalf, grant to the person under disability or his next friend an indemnity certificate.
(3) An indemnity certificate granted under subsection (2) entitles the person under disability or his next friend to be paid from moneys standing to the credit of the Fund —
(a) the costs of the action or the appeal ordered to be paid by the person under disability or his next friend; and
(b) the costs of the action or appeal, as the case may be, as determined by the Board, incurred by or on behalf of the person under disability after the date on which the court refused to approve the settlement.
(4) Notwithstanding the provisions of subsection (3), the total amount payable from moneys standing to the credit of the Fund in respect of any proceedings in respect of which a certificate is so granted shall not in any case exceed $5 000 or such other amount as may from time to time be prescribed.
[Section 14B inserted: No. 37 of 1978 s. 2; amended: No. 24 of 1990 s. 123; No. 49 of 1996 s. 64.]
15. Costs of appeal etc. where award of damages overturned on appeal may be met from Fund
(1) Where after the coming into operation of this Act, a new trial is ordered in an action on the ground that the damages awarded in the action were excessive or inadequate, the respondent to the appeal or motion for the new trial is entitled to be paid from moneys standing to the credit of the Fund —
(a) an amount equal to the costs of the appellant in the appeal or motion for and upon the new trial ordered to be paid and actually paid by the respondent but where the Board is satisfied —
(i) that the respondent unreasonably refuses or neglects or is unable through lack of means to pay the whole of those costs or part thereof; or
(ii) that payment of those costs or part thereof would cause the respondent undue hardship; or
(iii) that the respondent cannot be found and the costs or part of those costs have not already been paid by the respondent and the Certificate of Taxation in respect thereof is produced to the Board,
the Board may direct in writing that an amount equal to those costs or to the part of those costs not already paid by the respondent be paid from moneys standing to the credit of the Fund for and on behalf of the respondent to the appellant and thereupon the appellant is entitled to payment from moneys standing to the credit of the Fund in accordance with the direction of the Board and the Fund is discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction;
(b) an amount equal to the respondent’s costs of the appeal or motion for and upon the new trial, as taxed or agreed upon by the Board and the respondent or the respondent’s solicitor and not ordered to be paid by any other party; and
(c) where the costs referred to in paragraph (b) are taxed at the instance of the respondent an amount equal to the costs incurred by him in having those costs taxed.
(2) Notwithstanding the provisions of subsection (1) —
(a) the aggregate of the amounts payable from moneys standing to the credit of the Fund pursuant to paragraphs (b) and (c) of that subsection shall not exceed the amount payable from moneys standing to the credit of the Fund pursuant to paragraph (a) of that subsection; and
(b) the amount payable from moneys standing to the credit of the Fund to any one respondent in respect of the appeal or motion for a new trial shall not in any case exceed the sum of $1 000 or such other amount as may from time to time be prescribed.
(2a) The provisions of subsections (1) and (2) relating to the entitlement of a respondent to an appeal to be paid from moneys standing to the credit of the Fund amounts in respect of costs of an appeal apply, with such modifications as are necessary, where, after the coming into operation of the Suitors’ Fund Act Amendment Act 1971, on an appeal in an action a new trial is not ordered but damages awarded in the action are altered on the ground that they were excessive or inadequate.
(3) This section does not apply where the respondent to the appeal or motion for the new trial is the Crown or a company or foreign company that has a paid up capital of or equivalent to $200 000.
[Section 15 amended: No. 113 of 1965 s. 8; No. 72 of 1969 s. 5; No. 57 of 1971 s. 8; No. 49 of 1996 s. 64.]
15A. Subsidiary and related corporations
Notwithstanding any other provision of this Act, where it appears to the Board that a corporation is, for the purposes of the Corporations Act 2001 of the Commonwealth, a related body corporate of another corporation that has a paid up capital of or equivalent to $200 000 or more, an amount shall not be paid from moneys standing to the credit of the Fund to that first‑mentioned corporation.
[Section 15A inserted: No. 57 of 1971 s. 9; amended: No. 10 of 1982 s. 28; No. 49 of 1996 s. 64; No. 20 of 2003 s. 47.]
16. Protection from personal liability
Neither the Board nor a person who is, or has been, a member of the Board is liable in any action or proceeding for anything done or omitted in good faith, in or in connection with, the exercise or purported exercise of any power conferred, or the carrying out of any duty imposed on the Board by this Act.
17. Regulations
The Governor may make regulations prescribing all matters that by this Act are required or authorised to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act and in particular may make regulations for or with respect to —
(a) the manner of operating on the Fund;
(b) the taxation or assessment of costs for the purposes of this Act in circumstances not provided for under the rules of the appropriate court or where a party to an appeal refuses or neglects to tax his costs;
(c) regulating the preparation and service of bills of costs proposed to be taxed for the purposes of this Act; and
(d) prescribing forms for the purposes of this Act.
18. Review of Act
(1) The Minister must review the operation and effectiveness of this Act, and prepare a report based on the review, as soon as practicable after the 2nd anniversary of the day on which the Suitors’ Fund Amendment Act 2019 section 6 comes into operation.
(2) The review must address the following —
(a) the effect of the levy payable under section 5 on access by litigants to the courts;
(b) the extent to which recommendations from reports of the Law Reform Commission of Western Australia relating to the operation of this Act have not been implemented; and
(c) any other matters that appear to the Minister to be relevant to the operation and effectiveness of this Act.
(3) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 2nd anniversary.
[Section 18 inserted: No. 8 of 2019 s. 6.]
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Notes
This is a compilation of the Suitors’ Fund Act 1964 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.
Compilation table
Short title
Number and year
Assent
Commencement
Suitors’ Fund Act 1964
43 of 1964 (13 Eliz. II No. 43)
19 Nov 1964
s. 1-7: 1 Jan 1965 (see s. 2 and Gazette 24 Dec 1964 p. 4093); balance: 2 Aug 1965 (see s. 2 and Gazette 16 Jul 1965 p. 2059)
Decimal Currency Act 1965
113 of 1965
21 Dec 1965
Act other than s. 4-9: 21 Dec 1965 (see s. 2(1)); s. 4-9: 14 Feb 1966 (see s. 2(2))
Suitors’ Fund Act Amendment Act 1969
72 of 1969
27 Oct 1969
27 Oct 1969
Suitors’ Fund Act Amendment Act 1971
57 of 1971
15 Dec 1971
18 Feb 1972 (see s. 2 and Gazette 18 Feb 1972 p. 355)
Suitors’ Fund Act Amendment Act 1977
44 of 1977
7 Nov 1977
1 Jan 1978 (see s. 2 and Gazette 30 Dec 1977 p. 4743)
Suitors’ Fund Act Amendment Act 1978
37 of 1978
21 Aug 1978
21 Aug 1978
Suitors’ Fund Act Amendment Act (No. 2) 1978
58 of 1978
21 Sep 1978
21 Sep 1978
Reprint of the Suitors’ Fund Act 1964 approved 21 Aug 1979 (includes amendments listed above)
Companies (Consequential Amendments) Act 1982 s. 28
10 of 1982
14 May 1982
1 Jul 1982 (see s. 2(1) and Gazette 25 Jun 1982 p. 2079)
Suitors’ Fund Amendment Act 1984
58 of 1984
24 Oct 1984
21 Nov 1984
Acts Amendment (Financial Administration and Audit) Act 1985 s. 3
98 of 1985
4 Dec 1985
1 Jul 1986 (see s. 2 and Gazette 30 Jun 1986 p. 2255)
Guardianship and Administration Act 1990 s. 123
24 of 1990
7 Sep 1990
20 Oct 1992 (see s. 2 and Gazette 2 Oct 1992 p. 4811)
Financial Administration Legislation Amendment Act 1993 s. 11
6 of 1993
27 Aug 1993
1 Jul 1993 (see s. 2(1))
Acts Amendment (Ministry of Justice) Act 1993 Pt. 18 2
31 of 1993
15 Dec 1993
1 Jul 1993 (see s. 2)
Financial Legislation Amendment Act 1996 s. 64
49 of 1996
25 Oct 1996
25 Oct 1996 (see s. 2(1))
Trustees Amendment Act 1997 s. 18
1 of 1997
6 May 1997
16 Jun 1997 (see s. 2 and Gazette 10 Jun 1997 p. 2661)
Workers’ Compensation and Rehabilitation Amendment Act 1999 s. 61
34 of 1999
5 Oct 1999
15 Oct 1999 (see s. 2(2) and Gazette 15 Oct 1999 p. 4889)
Reprint of the Suitors’ Fund Act 1964 as at 29 Oct 1999 (includes amendments listed above)
Corporations (Consequential Amendments) Act (No. 2) 2003 Pt. 23
20 of 2003
23 Apr 2003
15 Jul 2001 (see s. 2(1) and Cwlth Gazette 13 Jul 2001 No. S285)
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 68
65 of 2003
4 Dec 2003
1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)
Statutes (Repeals and Minor Amendments) Act 2003 s. 114
74 of 2003
15 Dec 2003
15 Dec 2003 (see s. 2)
Courts Legislation Amendment and Repeal Act 2004 s. 141
59 of 2004
23 Nov 2004
1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 78 and 80
84 of 2004
16 Dec 2004
2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction: Gazette 7 Jan 2005 p. 53))
Reprint 3: The Suitors’ Fund Act 1964 as at 22 Jul 2005 (includes amendments listed above)
Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 3 Div. 7
28 of 2006
26 Jun 2006
1 Jul 2006 (see s. 2 and Gazette 27 Jun 2006 p. 2347)
Financial Legislation Amendment and Repeal Act 2006 s. 4 and Sch. 1 cl. 164
77 of 2006
21 Dec 2006
1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
Criminal Law and Evidence Amendment Act 2008 s. 71
2 of 2008
12 Mar 2008
27 Apr 2008 (see s. 2 and Gazette 24 Apr 2008 p. 1559)
Legal Profession Act 2008 s. 708
21 of 2008
27 May 2008
1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)
Reprint 4: The Suitors’ Fund Act 1964 as at 25 Jun 2010 (includes amendments listed above)
Suitors’ Fund Amendment Act 2019
8 of 2019
15 May 2019
s. 1-3 and 6: 15 May 2019 (see s. 2(a)); s. 4 and 5: 1 Jan 2021 (see s. 2(b) and SL 2020/260 cl. 2)
Suitors’ Fund Amendment (Levy) Act 2019
9 of 2019
15 May 2019
s. 1 and 2: 15 May 2019 (see s. 2(a)); Act other than s. 1 and 2: 1 Jan 2021 (see s. 2(b) and SL 2020/260 cl. 2)
Legal Profession Uniform Law Application Act 2022 s. 424
9 of 2022
14 Apr 2022
1 Jul 2022 (see s. 2(c) and SL 2022/113 cl. 2)
Other notes
1 Proclaimed 1 Jan 1978, see s. 2 and Gazette 23 Dec 1977, p. 4671.
2 The Acts Amendment (Ministry of Justice) Act 1993 s. 68 is a savings provision that is of no further effect.
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]