Common circumstances for reimbursement
The Appeal Costs Act 1998 (Vic) (‘AC Act’) lays down the specific circumstances under which parties may be reimbursed by the Appeal Costs Board (ACB).
The most common circumstances are:
- an adjourned criminal proceeding;
- a discontinued criminal proceeding;
- a successful criminal appeal;
- an appeal by the Director of Public Prosecutions or the Crown;
- a successful civil appeal; and
- a discontinued civil proceeding.
The AC Act does not reimburse 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 offence. You consult a solicitor and pay a barrister to represent you in court. However, on the day of the hearing, 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 party (rather than issue an indemnity 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 (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 $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 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).
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.
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 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.