Common circumstances for reimbursement
The AC A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. lays down the specific circumstances under which parties may be reimbursed by the ACB. The most common circumstances are:
- an adjourned criminal proceeding;
- a discontinued criminal proceeding;
- a successful criminal The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision.;
- an appeal by the DPP or (1) A common term for the legal power and authority of the Commonwealth, state and territory governments. (2) Another name for the prosecution in a criminal trial.;
- a successful civil appeal; and
- a discontinued civil proceeding.
The AC Act does not reimburse The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. for an adjourned civil proceeding.
In criminal matters, most applications arise under section 17(1) of the AC Act.
Suppose, for example, you have been charged with a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious).. You consult a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister. and pay a A lawyer who specialises in giving advice in difficult cases and representing clients in court. to represent you in An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.. However, on the day of the The time and place at which a court or tribunal hears the parties argue their case and makes a decision., you arrive at court with your barrister only to learn that the court is unable to hear the matter due to an issue beyond your control. In these circumstances, the ACB may reimburse some of the cost of your legal representation (e.g. you barrister’s fee for attending court).
However, in some criminal adjournments your solicitor may not need to apply to the ACB to reimburse your costs as the court may order costs against any A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. (rather than issue an A promise to pay compensation to cover losses or expenses that may arise in the future if some stated event occurs. For example, if a business partnership ends and one partner continues to run the business, they generally agree to indemnify the others against any claims against the business in the future. Insurance contracts also indemnify the insured against stated risks. certificate) on the day of the adjournment.
Section 17(5) of the AC Act has been amended under the Appeal Costs and Penalty Interest Rates Acts (A change made to a legal document or Act of parliament.) 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 $200 000 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 A person who appeals a decision of a court or tribunal to a higher court. may be reimbursed for the costs of an appeal at which:
- a conviction of an A serious crime that is generally heard before a judge and jury in the County Court or the Supreme Court a criminal case. Examples of indictable offences include assault and armed robbery. 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).
The AC Act does not allow an indemnity certificate to be granted to a (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. for their own costs if the Crown appeals on a question of law (The court’s review of an administrative decision on the basis of a legal error in the decision-making process. For example, a court can review a decision by an official on the ground that the official is biased. Compare review on the merits. See also administrative act.) to the Supreme Court from a decision of a magistrate.
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 $50 000.
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.
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 Something that is not allowed as evidence in a court hearing. For example, the fact that someone has been convicted of theft in the past is inadmissible to show that they stole something this time. Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. has prejudiced the A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases. hearing a case, or where a A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. is found to be known by the judge or magistrate, or by a member of the jury.