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PARLIAMENT OF VICTORIA
Appeal Costs and Penalty Interest Rates Acts
(Amendment) Act 2004
Act No.
Victorian Legislation Parliamentary Documents
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Adjournment of criminal proceeding 2
5. New section 27A inserted 3
27A. Board need not hold hearing 3
6. New sections 35A to 35E inserted 4
35A. No payments to certain persons or in respect of certain
matters 4
35B. Meaning of costs reasonably incurred 4
35C. Board may require costs to be taxed etc. 5
35D. Time limits for applications to Board 5
35E. Expiry of indemnity certificates 6
7. New section 46 inserted 6
46. Transitional--2004 amendments 6
8. Amendment of the Penalty Interest Rates Act 1983 7
17. Validity of certain calculations of penalty interest 7
ENDNOTES 8
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PARLIAMENT OF VICTORIA
Initiated in Assembly 4 May 2004
Victorian Legislation Parliamentary Documents
A BILL
to amend the Appeal Costs Act 1998 and the Penalty Interest Rates
Act 1983 and for other purposes.
Appeal Costs and Penalty Interest Rates
Acts (Amendment) Act 2004
The Parliament of Victoria enacts as follows:
1. Purposes
The purposes of this Act are--
(a) to amend the Appeal Costs Act 1998--
(i) to require a court to consider an order
for costs before granting an indemnity
5
certificate when a criminal proceeding
is adjourned;
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Appeal Costs and Penalty Interest Rates Acts (Amendment) Act
2004
s. 2
Act No.
(ii) to introduce caps on payments in
relation to adjournments in criminal
proceedings;
(iii) to provide further for the powers of the
Victorian Legislation Parliamentary Documents
Appeal Costs Board;
5
(iv) to provide that certain payments may
not be made under the Appeal Costs
Act 1998;
(v) to provide time limits within which
applications for payment must be made;
10
and
(b) to amend the Penalty Interest Rates Act
1983 to clarify the validity of certain
calculations of penalty interest.
2. Commencement
15
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
3. Principal Act
See: In this Act, the Appeal Costs Act 1998 is called
Act No.
the Principal Act.
20 87/1998
and
amending
Act No.
35/2002.
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4. Adjournment of criminal proceeding
(1) In section 17(1) of the Principal Act, after
"adjournment" (where last occurring) insert "for
the day on which the adjournment is granted and,
if appropriate, the next day on which the court
25
sits".
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Appeal Costs and Penalty Interest Rates Acts (Amendment) Act
2004
s. 5
Act No.
(2) For section 17(2) of the Principal Act
substitute--
"(2) The court may only grant an indemnity
certificate under sub-section (1) if it is
Victorian Legislation Parliamentary Documents
satisfied that--
5
(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 sub-section (1)(b).".
10
(3) In section 17(3) of the Principal Act, for "that
have been incurred" substitute ", to the
maximum, if any, specified under sub-section (5),
in respect of the day or days referred to in the
indemnity certificate".
15
(4) After section 17(4) of the Principal Act insert--
"(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
20
indemnity certificate has been granted under
this section.
(6) An order made under sub-section (5)--
(a) may be of general or limited
application;
25
(b) may differ according to differences in
time, place or circumstance.".
5. New section 27A inserted
After section 27 of the Principal Act insert--
"27A. Board need not hold hearing
30
(1) The Board may determine an application for
payment under this Act without holding a
hearing.
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Appeal Costs and Penalty Interest Rates Acts (Amendment) Act
2004
s. 6
Act No.
(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.".
Victorian Legislation Parliamentary Documents
6. New sections 35A to 35E inserted
5
After section 35 of the Principal Act insert--
'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
10
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
15
(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
20
recoverable but for any amount payable
by way of excess under or in relation to
the policy.
(2) In sub-section (1), "corporation" and
"subsidiary" have the same meanings as in
25
the Corporations Act.
35B. Meaning of costs reasonably incurred
In considering whether costs have been
reasonably incurred, the Board must take
into account--
30
(a) whether the seniority and number of
counsel engaged were appropriate for
the proceeding; and
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Appeal Costs and Penalty Interest Rates Acts (Amendment) Act
2004
s. 6
Act No.
(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
Victorian Legislation Parliamentary Documents
being available for other work during
5
the period of the adjournment; and
(c) any other matter specified by the
Attorney-General by order published in
the Government Gazette.
35C. Board may require costs to be taxed etc.
10
(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
15
published in the Government Gazette, direct
that all costs--
(a) of a specified class; or
(b) of an amount exceeding a specified
amount--
20
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
25
costs of a taxation referred to in sub-section
(1) or (2) be borne by the applicant for
payment under this Act.
35D. Time limits for applications to Board
An application for payment under this Act
30
must be lodged with the Board not later than
12 months after the final determination of the
matter to which the indemnity certificate
relates.
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2004
s. 7
Act No.
35E. Expiry of indemnity certificates
(1) Subject to sub-section (2), if an application
for payment under this Act is not lodged
with the Board within the time referred to in
Victorian Legislation Parliamentary Documents
section 35D, the indemnity certificate
5
expires.
(2) Despite sub-section (1), the Board may
determine that an application for payment
under this Act may be assessed and
determined as if the indemnity certificate had
10
not expired, if it considers that it is in the
interests of justice to do so.'.
7. New section 46 inserted
After section 45 of the Principal Act insert--
"46. Transitional--2004 amendments
15
(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.
20
(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
25
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
30
indemnity certificate granted on or after the
commencement of that Act.
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Appeal Costs and Penalty Interest Rates Acts (Amendment) Act
2004
s. 8
Act No.
(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
Victorian Legislation Parliamentary Documents
made on or after the commencement of that
5
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
10
2004 apply to indemnity certificates granted
on or after the commencement of that Act.".
See:
8. Amendment of the Penalty Interest Rates Act 1983 Act No.
9967.
After section 16 of the Penalty Interest Rates Reprint No. 1
Act 1983 insert--
15 as at
7 November
"17. Validity of certain calculations of penalty 1996.
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dpc.vic.
If, before the commencement of the Appeal gov.au
Costs and Penalty Interest Rates Acts
(Amendment) Act 2004--
20
(a) a notice published in the Government
Gazette purported to fix the penalty
interest rate commencing on a date
preceding the date of publication of the
notice; and
25
(b) penalty interest at the rate purported to
have been fixed has been calculated
from the date referred to in the notice--
the calculation of interest from that date is
not by that reason alone invalid.".
30
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Appeal Costs and Penalty Interest Rates Acts (Amendment) Act
2004
Endnotes
Act No.
ENDNOTES
Victorian Legislation Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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