Appeal Costs Fund

The Appeal Costs Fund Act 1973 was amended on 20 September 2023 to remove civil appeals as an application class eligible to seek payment from the Fund. However, former part 4 division 1 continues to apply in relation to:

• an appeal which commenced prior to 20 September 2023

and

• an indemnity certificate granted before 20 September 2023.

Before preparing your application, review the former sections 15 and 16 of the Act and the former regulation 5 of the Regulation to make sure you comply with all requirements.

For an application to be referred to the Board under the former section 16 of the Act, you must provide the following documentation. Your application will be delayed if you do not provide these materials:

1. An application in either Form 2 or Form 3 to be completed in the name of, and signed by the applicant:
   • Form 2 relates to applications made under the former section 16(1) of the Act, where a respondent has actually paid to the appellant, the costs ordered by the Court and is seeking reimbursement from the Board.
   • Form 3 relates to applications made by the appellant/respondent under the former section 16(2) of the Act, where a respondent has unreasonably refused or is unable to pay to the appellant the costs ordered by the Court.
2. Indemnity certificate issued under the former section 15.
3. A copy of any relevant judgment or court order.
4. An order of the registrar stating the amount at which a costs statement has been assessed for all or part of the costs claimed (if applicable).
5. Documentary evidence of any payment of costs made by you or on your behalf. For example, a receipt or confirmation of an online funds transfer or other bank transfer (only required if you are applying under the former section 16(1)(a)).
6. The respondent’s costs of the appeal (only required if you are applying under the former section 16(1)(b)).
7. Evidence of the appellant’s costs of the appeal (only required if you are applying under the former section 16(2).
8. An itemised bill of costs for any other costs claimed. This is a document outlining the date, the purpose and the amount of any cost incurred during the appeal proceedings.
9. If payment of an appellant’s costs is claimed under the former section 16(2) of the Act, sworn evidence of the respondent’s failure to pay the appellant’s costs and the reasons why.
10. Sworn evidence of any other facts relied on.

Note: The former section 16 of the Act states that the Board and both parties must either agree to the costs to be claimed from the Fund or have the costs taxed. The Board reserves the right to consider whether the costs are reasonable even if the parties have agreed. The former section 16(3) of the Act provides that the maximum payable to any one respondent in relation to one indemnity certificate under the former section 16, is $15,000.

Under section 5(6) of the Act, the Board may allow an amount as it thinks fit to a party to any proceedings for the party’s costs of making an application to the Board under this Act.

You may have a claim on the Fund if:

• a proceeding ends because of the incapacity of the magistrate or judge
• a hearing is discontinued through no fault of the applicant, a certificate is issued, and a new trial ordered
• an appeal on a question of law is successful and a new trial is ordered
• an appeal is successful on the grounds of miscarriage of justice, and a new trial is ordered, or
• in criminal proceedings, a jury
  • is discharged through no fault of the applicant

  or

  • is unable to reach a verdict.

Application requirements under section 22

Before preparing your application, review section 22 of the Act and regulation 5 of the Regulation to ensure that you comply with all requirements.

For an application to be referred to the Board under section 22 of the Act, you must provide the following documentation. Your application will be delayed if you do not provide these materials:

1. An application in Form 9 to be completed by and signed by the applicant.
   
   If you are a solicitor acting on behalf of a client:
   • who has not paid your fees,
   • who, for whatever reason, cannot sign the application form, or
   • who has authorised you to act on their behalf in making an application to the Board

   then you may apply on your client's behalf, if you submit sworn evidence of the relevant facts.

2. A copy of any order, transcript or verdict and judgment record showing that the proceedings were aborted. This is only required if you are applying under section 22(2)(a).
3. A copy of any order for a new trial. If the order does not show it was made after an appeal on a question of law, or on the ground of a miscarriage of justice, provide a copy of any transcript showing that fact. This is only required if you are applying under section 22(2)(b).
4. An indemnity certificate in Form 8 issued under section 22(2)(c). This is only required if you are applying under section 22(2)(c).
5. A statutory declaration outlining the following:
   • when the order for a new trial was made
   • the reason for granting a new trial
   • the date of the new trial
   • an overview of the costs incurred.
6. All receipts, invoices, trust account ledgers, or any other documents showing payment of costs incurred for the original trial proceedings (and any appeal proceedings), including invoices for all disbursements and outlays. You must itemise the fees charged for each item of work performed in accordance with the costs agreement. You are required to identify the fees claimed as thrown away or partly thrown away.
7. All receipts, itemised invoices and/or other documents evidencing payment of costs incurred for any re-trial. Where the re-trial has not commenced, please provide an itemised interim invoice of all costs incurred which relate to the re-trial.
8. Signed costs agreement and disclosure notice in relation to the original trial proceedings (and any appeal proceedings), including counsel’s costs disclosure notice.

Please ensure your statutory declaration details information relating to the nature, complexity and circumstances of your matter to enable the Board to determine if costs claimed are reasonable.

Your application will be delayed if you do not provide all of the required materials. To speed up application processing, it is important that you only claim costs that are thrown away. An example of costs that are not thrown away would be medical reports or counsel’s brief that may be reused whether or not a new trial is eventually held.

Under section 5(6) the Board may also pay an amount for reasonable expenses incurred in preparing an application to the Board. If you are claiming these costs, you must provide an itemised invoice showing the reasonable costs incurred.