The Law Handbook 2024

Chapter 10.7: Compensation for some legal costs 981 NOTE Section 17(5) of the AC Act has been amended under the Appeal Costs and Penalty Interest Rates Acts (Amendment) Act 2004 (Vic) to allow the Attorney-General to specify the maximum amount the ACB can pay (see www.justice.vic.gov.au) . Under the AC Act (s 35A), a corporation that has a paid-up share capital of $200000 or more (or a subsidiary of such a corporation) cannot receive any payment from the ACB except under sections 6, 9 or 13 of the AC Act. An appellant may be reimbursed for the costs of an appeal at which: • a conviction of an indictable offence is quashed (s 14(1)); • a conviction of an indictable offence is upheld and a new trial is ordered (s 14(2)); or • an appeal is instituted by the Crown or the DPP under section 567A of the Crimes Act 1958 (Vic) or section 84 of the Magistrates’ Court Act 1989 (Vic). NOTE The AC Act does not allow an indemnity certificate to be granted to a respondent for their own costs if the Crown appeals on a question of law (judicial review) to the Supreme Court from a decision of a magistrate. Civil matters In civil matters, most applications to the ACB arise under section 4(1) of the AC Act, which allows an unsuccessful respondent to an appeal on a question of law to claim reimbursement from the ACB for both their own and the appellant’s costs, in relation to the appeal. The maximum amount payable for a matter under a sections 4, 5 or 6 claim is $50000. If a respondent is unable to pay the appellant, under section 6 of the AC Act, the appellant can directly apply for their costs to be paid, provided certain criteria are met. Discontinued proceedings Where a part-heard case is discontinued and a new trial is ordered, reimbursement may be made in both civil proceedings (s 10) and criminal proceedings (s 16). This may occur for other reasons that are not the fault of the parties; for example, where inadmissible evidence has prejudiced the jury hearing a case, or where a witness is found to be known by the judge or magistrate, or by a member of the jury. Making a claim for legal costs The documentation required, and the procedures to follow, to make a claim to the ACB are set out in the ACB’s guidelines (available at www.justice.vic.gov. au ). The requirements for each application may vary according to the type of proceeding involved. Under section 35D of the AC Act, applications must be lodged with the ACB no later than 12 months after the final determination of the matter to which the indemnity certificate relates. Note that certificates for criminal and civil matters are prepared by the courts and are (usually) submitted to the ACB by legal practitioners. The ACB plays no role in issuing certificates. Indemnity certificates remain the property of the party named on the certificate. The ACB can only consider an application if it is made by the certificate holder’s current legal practitioner. Procedure To apply to the ACB, submit an application via the ACB’s online portal at https://justice.service-now. com/acb. The portal will prompt applicants to supply the material that is required. The ACB does not consider incomplete applications. Note that law firms must register to use the ACB’s portal; registration codes can be obtained by emailing acb@justice.vic.gov.au. When a complete application is received by the Secretary of the ACB, it is reviewed and placed before the ACB as soon as practicable. Once the application has been considered (unless it is unsatisfactory or further material is required), a decision will be made about whether or not to authorise payment to the applicant of an amount determined by the ACB. An email is forwarded to the applicant or the applicant’s solicitors informing them of the ACB’s decision. The applicant does not need to attend the ACB’s meeting.