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PARLIAMENT OF VICTORIA
Appeal Costs Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 1
3. Definitions 2
PART 2--ENTITLEMENT TO PAYMENT IN CIVIL MATTERS 5
4. Application by respondent for indemnity certificate in respect
of appeal 5
5. Certificate entitles respondent to payment of costs 5
6. Appellant may request direct payment in certain circumstances 7
7. Application by successful appellant for grant of indemnity
certificate in certain circumstances 7
8. Appellant ordered to pay costs of new trial entitled to be
indemnified 8
9. Respondent may request direct payment in certain
circumstances 9
10. Application for indemnity certificate if civil proceeding
discontinued 10
11. Plaintiff who is under a disability or is a minor entitled to
payment when offer of compromise not approved by court 11
12. Certificate entitles plaintiff to payment of costs 11
13. Defendant may request direct payment in certain circumstances 12
PART 3--ENTITLEMENT TO PAYMENT IN CRIMINAL
MATTERS 13
14. Application for indemnity certificate if appeal against
conviction is successful 13
15. Application for indemnity certificate by respondent if the
Crown or DPP appeals 14
16. Application for indemnity certificate if criminal proceeding
discontinued 14
17. Application for indemnity certificate if criminal proceeding
adjourned 15
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Clause Page
18. Proceedings under the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 16
PART 4--INDEMNITY CERTIFICATES IN CASES STATED 18
19. Cases stated and questions of law reserved for opinion 18
PART 5--APPEAL COSTS BOARD 19
20. Appeal Costs Board 19
21. Functions of the Board 19
22. Membership 19
23. Term of appointment and termination 20
24. Payment of members 20
25. Vacancies and resignations 20
26. Acting members 20
27. Proceedings before the Board 21
28. Meetings 21
29. Proceeding or decision of Board not invalid by reason of
vacancy etc. 22
30. Conflicts of interest 22
31. Staff 23
PART 6--MISCELLANEOUS, TRANSITIONALS AND REPEAL 24
Division 1--General 24
32. Effect of indemnity certificate in sequence of appeals 24
33. Effect of indemnity certificate where there is limited period
for appealing 25
34. Effect of indemnity certificate where there is no limited period
for appealing 25
35. No payments without a certificate of the Board 26
36. Correction of errors 27
37. No appeal against grant or refusal of indemnity certificate 27
38. Crown cannot be granted an indemnity certificate 27
39. Payments made or incurred by Victoria Legal Aid 28
40. Supreme Court--Limitation of jurisdiction 28
41. Regulations 28
42. Board discharged from liability 28
Division 2--Transitionals and Repeal 29
43. Transitional--Application of Act 29
44. Transitional--Members of the Board 29
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Clause Page
45. Repeal 29
NOTES 31
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PARLIAMENT OF VICTORIA
A BILL
to re-enact, with amendments, the Appeal Costs Act 1964 and for
other purposes.
Appeal Costs Act 1998
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.
5 2. Commencement
(1) Section 1 and this section come into operation on
the day on which this Act receives the Royal
Assent.
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s. 3
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(2) Subject to sub-section (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 sub-section (2) does
5 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-
10 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;
15 "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
20 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,
25 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;
30 "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
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s. 3
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(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
5 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
10 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;
"insolvent under administration" means--
15 (a) a person who is an undischarged
bankrupt; or
(b) a person for whom a debt agreement
has been made under Part IX of the
Bankruptcy Act 1966 of the
20 Commonwealth (or the corresponding
provisions of the law of another
jurisdiction) where the debt agreement
has not ended or has not been
terminated; or
25 (c) a person who has executed a deed of
arrangement under Part X of the
Bankruptcy Act 1966 of the
Commonwealth (or the corresponding
provisions of the law of another
30 jurisdiction) where the terms of the
deed have not been fully complied
with; or
(d) a person whose creditors have accepted
a composition under Part X of the
35 Bankruptcy Act 1966 of the
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s. 3
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Commonwealth (or the corresponding
provisions of the law of another
jurisdiction) where a final payment has
not been made under that composition;
5 "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
10 appeal against the decision in that other
appeal.
(2) For the purposes of this Act--
(a) if an appellant is a minor or a person under a
disability, a reference to an appellant
15 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
1986;
20 (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
25 Guardianship and Administration Act
1986.
_______________
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Appeal Costs Act 1998
s. 4
Act No.
PART 2--ENTITLEMENT TO PAYMENT IN CIVIL
MATTERS
4. Application by respondent for indemnity certificate in
respect of appeal
5 (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
10 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
15 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
20 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 sub-section (2), a respondent granted an
indemnity certificate under section 4 is entitled to
25 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
30 indemnity certificate was granted; and
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(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
5 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
10 and has actually paid; and
(b) an amount equal to the respondent's own
costs--
(i) of the appeal in respect of which the
indemnity certificate was granted; and
15 (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
20 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
25 party and party 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
30 with the assessment.
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s. 6
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(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.
5 6. Appellant may request direct payment in certain
circumstances
(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
10 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
respondent has not actually paid those costs or
that part and the Board is satisfied that--
15 (a) the respondent is refusing, or is unable
because of lack of means, to do so; or
(b) doing so would cause the respondent undue
hardship.
(2) On the payment to the appellant, the Board is
20 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.
25 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
30 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
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s. 8
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(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,
5 and the court may grant, an indemnity certificate
in respect of costs.
(2) Subject to sub-section (3), an appellant granted an
indemnity certificate under sub-section (1) is
entitled to be paid by the Board, on an application
10 made to it by the appellant in the approved form--
(a) an amount equal to the appellant's own costs
of the appeal as assessed by the Board on a
party and party basis, or as agreed to by the
Board and the appellant; and
15 (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
20 pursuant to an indemnity certificate granted under
sub-section (1) is $2000 or any other amount that
is prescribed.
8. Appellant ordered to pay costs of new trial entitled to
be indemnified
25 (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
30 indemnity certificate in respect of costs.
(2) Subject to sub-section (3), an appellant granted an
indemnity certificate under sub-section (1) is
entitled to be paid by the Board, on an application
made to it by the appellant in the approved form--
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s. 9
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(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
(b) an amount equal to the appellant's own costs
5 of the new trial that have not been ordered to
be paid by any other party, as assessed by the
Board on a party and party basis, or as
agreed to by the Board and the appellant; and
(c) if the costs referred to in paragraph (b) are
10 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
15 sub-section (1) is $50 000 or any other amount
that is prescribed.
9. Respondent may request direct payment in certain
circumstances
(1) A respondent, whose costs referred to in section
20 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
25 appellant has not actually paid those costs or that
part and the Board is satisfied that--
(a) the appellant is refusing, or is unable because
of lack of means, to do so; or
(b) doing so would cause the appellant undue
30 hardship.
(2) On the payment to the respondent, the Board is
discharged from any liability to the appellant in
respect of any costs so paid.
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Appeal Costs Act 1998
s. 10
Act No.
(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
5 proceeding discontinued
(1) If--
(a) the hearing of any civil proceeding is
discontinued; and
(b) the reason for the discontinuance was not
10 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
15 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
20 under sub-section (1) if it is satisfied that the
reason for the discontinuance was as set out in
sub-section (1)(b).
(3) A party granted an indemnity certificate under
sub-section (1) who pays, or is ordered to pay, any
25 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 of the discontinued proceeding that the
30 Board considers to have been reasonably incurred.
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Appeal Costs Act 1998
s. 11
Act No.
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
5 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
10 (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
15 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.
20 12. Certificate entitles plaintiff to payment of costs
(1) Subject to sub-section (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--
25 (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
(b) an amount equal to the plaintiff's own costs
30 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 party and party
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Appeal Costs Act 1998
s. 13
Act No.
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
5 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
10 prescribed.
13. Defendant may request direct payment in certain
circumstances
(1) A defendant, whose costs referred to in section
12(1)(a) were ordered to be paid by a plaintiff
15 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
plaintiff has not actually paid those costs or that
20 part and the Board is satisfied that--
(a) the plaintiff is refusing, or is unable because
of lack of means, to do so; or
(b) doing so would cause the plaintiff undue
hardship.
25 (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
30 that is prescribed.
_______________
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Appeal Costs Act 1998
s. 14
Act No.
PART 3--ENTITLEMENT TO PAYMENT IN CRIMINAL
MATTERS
14. Application for indemnity certificate if appeal against
conviction is successful
5 (1) If an appeal to a superior court against a
conviction for an indictable offence succeeds and
the court quashes 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
10 indemnity certificate in respect of costs.
(2) If, on an appeal referred to in sub-section (1), the
superior court orders a new trial, the appellant, in
their application under that sub-section for an
indemnity certificate, may apply for the inclusion
15 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 sub-section (1) is entitled to be paid by the
20 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,
25 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--
30 (a) a finding under section 17(1)(c) of the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997;
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Appeal Costs Act 1998
s. 15
Act No.
(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
5 the Crown or DPP appeals
(1) If an appeal is instituted under--
(a) section 567A of the Crimes Act 1958; or
(b) section 84 of the Magistrates' Court Act
1989; or
10 (c) section 197(3) of the Children and Young
Persons Act 1989--
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
15 indemnity certificate in respect of the respondent's
own costs of the appeal.
(2) A respondent granted an indemnity certificate
under sub-section (1) is entitled to be paid by the
Board, on an application made to it by the
20 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.
16. Application for indemnity certificate if criminal
25 proceeding discontinued
(1) If--
(a) the hearing of any criminal proceeding is
discontinued; and
(b) the reason for the discontinuance was not
30 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--
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Appeal Costs Act 1998
s. 17
Act No.
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
5 proceeding.
(2) The court may only grant an indemnity certificate
under sub-section (1) if it is satisfied that the
reason for the discontinuance was as set out in
sub-section (1)(b).
10 (3) An accused granted an indemnity certificate under
sub-section (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
15 in the approved form, an amount equal to the
accused's own costs 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.
20 (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
25 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
30 (1) If--
(a) the hearing of any criminal proceeding is
adjourned; and
(b) the reason for the adjournment was not
attributable in any way to the act, neglect or
35 fault of a party accused or convicted of an
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Appeal Costs Act 1998
s. 17
18
Act No.
offence to which the proceeding relates
(whether that party is a defendant, appellant
or respondent in the proceeding), or that
party's legal practitioner; and
5 (c) that party pays, or is ordered to pay, any
additional costs as a consequence of the
adjournment--
that party may apply to the court for, and the court
may grant, an indemnity certificate in respect of
10 that party's own costs of the adjournment.
(2) The court may only grant an indemnity certificate
under sub-section (1) if it is satisfied that--
(a) the reason for the adjournment was as set out
in sub-section (1)(b); and
15 (b) the party has necessarily incurred additional
costs as a consequence of the adjournment.
(3) A party granted an indemnity certificate under
sub-section (1) is entitled to be paid by the Board,
on an application made to it by that party in the
20 approved form, an amount equal to that party's
own costs of the adjournment that the Board
considers to have been reasonably incurred and
that have not been ordered to be paid by any other
party.
25 (4) For the purposes of this section, a criminal
proceeding is deemed to have been adjourned if
the court hearing the proceeding, the informant or
the Director of Public Prosecutions (as the case
may be) notifies the accused or their legal
30 practitioner that a date has been fixed for the
hearing of the proceeding, and the proceeding is
not listed for hearing on that day.
18. Proceedings under the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997
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Appeal Costs Act 1998
Act No.
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
5 and Unfitness to be Tried) Act 1997;
or
(ii) under section 570A of the Crimes Act
1958; or
(iii) under section 570C of the Crimes Act
10 1958; or
(b) an investigation into a defendant's fitness to
stand trial under Part 2 of the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997; or
15 (c) a special hearing conducted under Part 3 of
the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997--
is to be taken to be a criminal proceeding.
_______________
20
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Appeal Costs Act 1998
s. 19
Act No.
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
5 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--
10 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
15 on the case stated.
(2) Subject to sub-section (3), a party granted an
indemnity certificate under sub-section (1) is
entitled to be paid by the Board, on an application
made to it by the party in the approved form, an
20 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 sub-
25 section (1) is $50 000 or any other amount that is
prescribed.
_______________
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Appeal Costs Act 1998
s. 20
Act No.
PART 5--APPEAL COSTS BOARD
20. Appeal Costs Board
There continues to be an Appeal Costs Board.
21. Functions of the Board
5 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
10 (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
15 (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,
20 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
25 appointed by the Attorney-General--
(a) a chairperson; and
(b) as many other persons as the Attorney-
General thinks fit.
(2) The Public Sector Management and
30 Employment Act 1998 does not apply to a
member in respect of the office of member.
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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.
5 (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
10 allowances that are fixed by the Governor in
Council.
25. Vacancies and resignations
(1) The office of a member becomes vacant if the
member--
15 (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.
20 (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
25 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
30 perform all the duties of a member.
(4) The Attorney-General may at any time terminate
an acting member's appointment.
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27. Proceedings before the Board
(1) The Board has the powers conferred by sections
14, 15, 16 and 21(1) of the Evidence Act 1958 on
a board appointed by the Governor in Council.
5 (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 sub-section (2) must be included
10 in any certificate issued under section 35 to that
applicant.
28. Meetings
(1) The chairperson must preside at a meeting of the
Board.
15 (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.
20 (4) Subject to sub-section (5), a matter arising at a
meeting of the Board is determined by a majority
of votes and the chairperson has a deliberative
vote and, in the case of an equality of votes, a
second or casting vote.
25 (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
30 present.
(6) The Board must ensure that accurate minutes are
kept of its meetings.
(7) Subject to this Part and the regulations, the Board
may regulate its own proceedings.
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s. 29
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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
5 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.
10 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
15 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--
20 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.
Penalty: 5 penalty units.
(2) The person presiding at a meeting at which a
25 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--
30 (a) unless the Board directs otherwise, the
member must not be present during any
deliberations on the matter; and
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(b) the member is not entitled to vote on the
matter; and
(c) if the member does vote, the vote must be
disallowed.
5 31. Staff
A Secretary to the Board may be employed under
Part 3 of the Public Sector Management and
Employment Act 1998.
_______________
10
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s. 32
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PART 6--MISCELLANEOUS, TRANSITIONALS AND
REPEAL
Division 1--General
32. Effect of indemnity certificate in sequence of appeals
5 (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
sub-section and of no effect if--
(a) in a later appeal in that sequence, the
10 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
15 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 sub-
20 section 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
25 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
30 later appeal or any other later appeal (as the
case may be); and
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(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
5 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
10 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
15 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.
20 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
25 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
30 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
35 against the decision in that appeal--
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s. 34
35
Act No.
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
5 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
10 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--
15 whichever happens first.
(3) If a respondent breaches an undertaking that they
have given to the Board under sub-section (1)(b),
the respondent must, on demand made by the
Board, repay to the Board any amount paid to the
20 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
25 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 sub-section (3) or (4), the Board
30 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 35. No payments without a certificate of the Board
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(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
5 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
10 under this Act is to be paid out of money made
available to the Board for the purpose.
36. Correction of errors
The Board, on its own initiative or at the request
of the person in respect of whom the Board has
15 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
20 (c) an evident material mistake in the
description of a person or thing.
37. No appeal against grant or refusal of indemnity
certificate
(1) The grant or refusal of an indemnity certificate by
25 a court is in its discretion.
(2) No appeal lies against a grant or refusal by a court
of an indemnity certificate.
38. Crown cannot be granted an indemnity certificate
A court must not grant an indemnity certificate in
30 favour of the Crown or any person representing
the Crown.
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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
5 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
(b) any amount paid to Victoria Legal Aid under
10 this Act in respect of an assisted person
within the meaning of the Legal Aid Act
1978 is not be taken to be an amount paid to
the Crown.
40. Supreme Court--Limitation of jurisdiction
15 It is the intention of section 37(2) 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
20 required or permitted to be prescribed or
necessary to be prescribed to give effect to this
Act.
(2) Without limiting sub-section (1), the Governor in
Council may make regulations for or with respect
25 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
30 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
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s. 45
Act No.
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.
5 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,
10 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
15 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.
20 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
25 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
29
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Act No.
The Appeal Costs Act 1964 is repealed.
No. 7117.
Reprint No. 5
as at 21
March 1996.
Further
amended by
Nos 35/1996,
59/1996,
64/1996 and
46/1998.
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
32
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