Eligibility for reimbursement of legal costs

5 Feb

Written By For Good Digital

The AC Act outlines the specific circumstances under which parties may be reimbursed by the Board. The most common circumstances are:
- adjourned criminal proceedings;
- discontinued criminal proceedings;
- successful criminal appeals;
- appeals by the DPP or Crown;
- successful civil appeals; and
- discontinued civil proceedings.
The AC Act does not reimburse costs for an adjourned civil proceeding.
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 reimbursement except under sections 6, 9 or 13 of the AC Act.
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 reasons that are not the fault of the parties; for example, where the jury is discharged without verdict.
Under the AC Act, a ‘discontinued’ proceeding has a different meaning to that under the Criminal Procedure Act 2009; a new trial must be ordered for reimbursement to be made.
Adjourned hearings
In criminal matters, most applications arise under section 17(1) of the AC Act, which allows criminal proceedings which are adjourned through no fault of a party, for the court to issue an indemnity certificate in respect of that party’s own costs of the adjournment for the day on which the adjournment is granted and, if appropriate, the next day on which the court sits. 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, if the court issues an indemnity certificate the Board may reimburse some of the cost of your legal representation (e.g. your barrister’s fee for attending court). However, in some criminal adjournments your solicitor may not need to apply to the Board 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.
The Attorney-General can specify the maximum amount the Board can award for section 17 applications by way of the Victorian Government Gazette (www.justice.vic.gov.au/justice-system/laws-and-regulation/how-to-apply-to-the-appeal-costs-board).
An appellant/respondent/accused (as applicable)
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, the DPP, or the accused in certain circumstances, or a case stated for the Court of Appeal (ss 15, 15A, 15B, 15C).
In civil matters, most applications to the Board arise under section 5(1) of the AC Act, which allows an unsuccessful respondent to an appeal on a question of law to claim reimbursement for both their own and the appellant’s costs (where an order for costs has been made), in relation to the appeal.
The maximum amount payable for a matter under a section 5 or 6 claim is $50 000.