Appeal Costs Fund Act 1968
An Act to make provision with respect to liability for the costs of certain litigation, to establish a Fund to meet that liability, and to provide for matters incidental thereto
[Royal Assent 5 December 1968]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
1. Short title and commencement
(1) This Act may be cited as the Appeal Costs Fund Act 1968 .(2) This Act shall commence on a day to be fixed by proclamation.
[Section 2 Amended by No. 92 of 1974, s. 6 and Sched. 1 ][Section 2 Amended by No. 48 of 1979, s. 8 ]In this Act, unless the contrary intention appears –appeal includes a motion to review, a case stated for the opinion or determination of a superior court on a question of law, a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial, and any other proceeding in the nature of an appeal;appellant includes the next friend of an infant or person under disability and the guardian ad litem of a person;costs, in relation to an appeal, includes the costs of an application for an indemnity certificate in respect of an appeal but, except where otherwise expressly provided in this Act, does not include costs incurred in a court of first instance;court of summary jurisdiction has the meaning assigned to that expression by the Justices Act 1959 ;[Section 2 Amended by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ;Fund means the Appeal Costs Fund established under this Act;indemnity certificate means an indemnity certificate granted under section 8 or section 10 ;[Section 2 Amended by No. 55 of 2007, Sched. 1, Applied:01 Mar 2008] [Section 2 Amended by No. 13 of 2012, s. 4, Applied:30 May 2012] judicial officer means a judge or the Associate Judge of the Supreme Court, a magistrate, a commissioner of the Magistrates Court (Civil Division), the chairman of a court of general sessions, or two or more justices in petty sessions;proper officer, used in relation to a court, means –(a) in the case of the Supreme Court, the Registrar of the Supreme Court;(b) [Section 2 Amended by No. 13 of 2012, s. 4, Applied:30 May 2012] in the case of the Magistrates Court (Civil Division) or a court of general sessions, the registrar of that court; and(c) in relation to a court of summary jurisdiction, the clerk of petty sessions for the district in which the court is held;Registrar means the Registrar of the Supreme Court and includes the Deputy Registrar and the Assistant Deputy Registrar;respondent includes the next friend of an infant or person under disability and the guardian ad litem of a person;[Section 2 Amended by No. 33 of 2023, s. 5, Applied:27 Nov 2023] sequence of appeals means a sequence of appeals in which each appeal that follows next after another appeal in the sequence is an appeal against the decision in that other appeal;[Section 2 Amended by No. 33 of 2023, s. 5, Applied:27 Nov 2023] Tribunal means the Tasmanian Civil and Administrative Tribunal.
[Section 4 Amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 4 Amended by No. 50 of 2008, Sched. 1, Applied:01 Mar 2009](1) For the purposes of this Act, there shall be a fund to be known as the Appeal Costs Fund.(2) [Section 3 Subsection (2) amended by No. 92 of 1974, s. 6 and Sched. 1 ]The Fund shall consist of –(a) moneys paid into the Fund pursuant to section 6 ;(b) moneys paid into the Fund by the Registrar as required by section 13 (6) ; and(c) income derived from the investment of moneys forming part of the Fund.(3) From the Fund there shall be paid the amounts referred to in sections 9 , 11 , 15 , 16 , and 17 .(4) [Section 3 Subsection (4) amended by No. 92 of 1974, s. 6 and Sched. 1 ]The Fund is vested in, and shall be managed by, the Registrar.(5) The income of the Fund is not subject to any tax imposed by or under a law of the State.(6) [Section 3 Subsection (6) amended by No. 92 of 1974, s. 6 and Sched. 1 ]The Registrar may invest moneys standing to the credit of the Fund in any manner for the time being allowed by law for the investment of trust funds.(7) [Section 3 Subsection (7) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 3 Subsection (7) amended by No. 62 of 1996, s. 3 and Sched. 1 ]Moneys standing to the credit of the Fund that are held uninvested may be lodged either at call or on fixed deposit, or partly at call and partly at fixed deposit, with the Treasurer or with an authorised deposit-taking institution.
5. Additional fee to be paid in certain cases
(1) [Section 5 Subsection (1) amended by No. 38 of 2015, s. 11, Applied:13 Oct 2015] [Section 5 Subsection (1) amended by No. 13 of 2012, s. 5, Applied:30 May 2012] [Section 5 Subsection (1) substituted by No. 89 of 1986, s. 4 ]On the sealing of a writ to be issued out of the Supreme Court or on the filing of a claim in the Magistrates Court (Civil Division) or a court of general sessions there is payable, in addition to any fee payable under any other law, such fee as may be prescribed by the regulations.(2) [Section 5 Subsection (2) amended by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022] [Section 5 Subsection (2) amended by No. 89 of 1986, s. 4 ]Where by a conviction or order made on the hearing of a complaint under the Justices Act 1959 (other than a conviction or order made in the Supreme Court) a fine is imposed on a person or a person is ordered to pay a sum of money, either with or without costs or for costs alone, that person shall pay to the appropriate clerk of petty sessions the prescribed fee in addition to the other fees (if any) ordered, pursuant to section 137 of that Act , to be paid by that person.(3) A fee that is required to be paid by a person pursuant to subsection (2) shall, for the purposes of recovery, be deemed to be costs ordered to be paid under section 77 of the Justices Act 1959 .(4) [Section 5 Subsection (4) amended by No. 38 of 2015, s. 11, Applied:13 Oct 2015] [Section 5 Subsection (4) amended by No. 89 of 1986, s. 4 ]The fee referred to in subsection (1) is not payable on or in respect of the sealing of a writ or the filing of a claim in a case where, by virtue of a provision of, or by virtue of any direction or approval given under, any Act, rule of court, or rule of practice the writ or claim may be sealed or filed without payment of a fee.
5A. Annual statement to Workplace Safety Board of Tasmania
[Section 5A Inserted by No. 16 of 1995, s. 93 ](1) [Section 5A Subsection (1) amended by No. 33 of 2023, s. 6, Applied:27 Nov 2023] The Registrar of the Tribunal must, not later than 31 July in each year, give to the Workplace Safety Board of Tasmania established under the Workers Rehabilitation and Compensation Act 1988 a statement specifying the number of disputed claims for compensation made under that Act to the Tribunal during the previous financial year.(2) The Workplace Safety Board of Tasmania must, not later than 31 August in each year –(a) give to the Registrar a copy of the statement received by it under subsection (1) ; and(b) pay to the Registrar the prescribed amount.(3) [Section 5A Subsection (3) amended by No. 38 of 2015, s. 12, Applied:13 Oct 2015] [Section 5A Subsection (3) amended by No. 13 of 2012, s. 6, Applied:30 May 2012] For the purposes of subsection (2) , the prescribed amount is an amount calculated by multiplying the number of disputed claims for compensation made to the Tribunal by the fee prescribed in regulations made under this Act on the filing of a claim in the Magistrates Court (Civil Division).
5B. Annual statement to Asbestos Compensation Commissioner
[Section 5B Inserted by No. 28 of 2011, s. 6, Applied:31 Oct 2011](1) [Section 5B Subsection (1) amended by No. 33 of 2023, s. 7, Applied:27 Nov 2023] The Registrar of the Tribunal must, not later than 31 July in each year, give to the Asbestos Compensation Commissioner appointed under the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 a statement specifying the number of applications for referral made under that Act to the Tribunal during the previous financial year.(2) The Asbestos Compensation Commissioner must, not later than 31 August in each year –(a) give to the Registrar a copy of the statement received by the Commissioner under subsection (1) ; and(b) pay to the Registrar the prescribed amount.(3) [Section 5B Subsection (3) amended by No. 38 of 2015, s. 13, Applied:13 Oct 2015] For the purposes of subsection (2) , the prescribed amount is an amount calculated by multiplying the number of applications for referral made under that Act to the Tribunal by the fee prescribed in regulations made under this Act on the filing of a claim in the Magistrates Court (Civil Division).
6. Quarterly returns by officers of courts
[Section 6 Amended by No. 92 of 1974, s. 6 and Sched. 1 ](1) On or before the last day of January, April, July, and October in each year, the proper officer of a court shall cause to be prepared and sent to the Registrar a statement in the prescribed form signed by the proper officer –and shall, with that statement, transmit to the Registrar the amount referred to in paragraph (a) .(a) [Section 6 Subsection (1) amended by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] setting forth the total amount paid to him during the preceding 3 months by way of fees under section 5(1) as appearing from the records in his custody or under his control; and(b) containing such other information, if any, as may be prescribed –(2) The Registrar shall pay all amounts transmitted to him pursuant to subsection (1) into the Fund.(3) The regulations may require the proper officer of a court to keep such records for the purposes of this Act as may be prescribed and may generally regulate the keeping of those records and the preparation and sending to the Registrar of statements under subsection (1) .
6A. Fees to be sent to Registrar
[Section 6A Inserted by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] The Director, MPES is to cause all fees payable under section 5(2) to be sent to the Registrar.
(1) [Section 7 Subsection (1) amended by No. 92 of 1974, s. 6 and Sched. 1 ]No moneys shall be paid out of the Fund otherwise than on and in accordance with a certificate of the Registrar.(2) [Section 7 Subsection (2) amended by No. 92 of 1974, s. 6 and Sched. 1 ]The Registrar shall not issue a certificate for the payment of moneys out of the Fund unless he is satisfied that the payment is authorized by this Act to be made from the Fund and that the provisions of this Act in relation to a claim for the payment have been complied with.(3) [Section 7 Subsection (3) substituted by No. 45 of 1978, s. 2 ][Section 7 Subsection (3) amended by No. 89 of 1986, s. 5 ]Payments out of the Fund shall be made during the months of January, April, July, and October in each financial year.(4) [Section 7 Subsection (4) substituted by No. 45 of 1978, s. 2 ][Section 7 Subsection (4) amended by No. 89 of 1986, s. 5 ]If when payments are due to be made out of the Fund the total amount of the claims for the preceding 3 months exceeds the amount in the Fund, the claims shall be paid rateably to the full extent of the Fund.(5) [Section 7 Subsection (5) substituted by No. 45 of 1978, s. 2 ][Section 7 Subsection (5) amended by No. 89 of 1986, s. 5 ]If on the last day of January, April, July, or October in any financial year after the payment of all claims payable out of the Fund for the preceding 3 months there is a credit balance in the Fund, the same shall be used to pay rateably all unsatisfied claims, if any, payable in the last preceding 5 financial years.
7A. Maximum amount payable from the Fund
[Section 7A Inserted by No. 89 of 1986, s. 6 ]Except where otherwise provided by this Act, the maximum amount payable to a person in respect of an indemnity certificate, a certificate referred to in section 15 (1) (c) , or some other entitlement conferred by this Act is such amount as may be prescribed by the regulations.
8. Grant of indemnity certificate to respondent in certain cases
(1) [Section 8 Subsection (1) amended by No. 45 of 1978, s. 3 ][Section 8 Subsection (1) amended by No. 89 of 1986, s. 7 ][Section 8 Subsection (1) amended by No. 19 of 1990, s. 4 ]Where an appeal –succeeds, the Supreme Court may, on application made in that behalf, grant to the respondent to the appeal or to one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.(a) to the Supreme Court from a decision of –(i) some other court;(ii) a board or other body or person from whose decision there is an appeal to a superior court or who may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court; or(iii) [Section 8 Subsection (1) amended by No. 55 of 2007, Sched. 1, Applied:01 Mar 2008] the Associate Judge;(b) to the Full Court of the Supreme Court from a decision of that Court held before a single judge or of a judge in chambers; or(c) to the High Court of Australia from a decision of the Supreme Court –(d) . . . . . . . .(e) . . . . . . . .(2) [Section 8 Subsection (2) amended by No. 89 of 1986, s. 7 ]Where an appeal is determined by the High Court of Australia, the power conferred on the Supreme Court by subsection (1) may be exercised by a judge sitting in chambers.(3) [Section 8 Subsection (3) amended by No. 55 of 2007, Sched. 1, Applied:01 Mar 2008] [Section 8 Subsection (3) added by No. 49 of 1988, s. 3 ]Where an appeal to the Supreme Court from a decision of the Associate Judge is by way of a re-hearing, the Supreme Court may exercise the power conferred on it by subsection (1) .
9. Effect of indemnity certificate granted to respondent
(1) Subject to this Act, where a respondent to an appeal has been granted an indemnity certificate, the certificate entitles the respondent to be paid from the Fund –(a) an amount equal to the appellant's costs –being costs ordered to be paid and actually paid by or on behalf of the respondent;(i) of the appeal in respect of which the certificate was granted; and(ii) where that appeal is an appeal in a sequence of appeals, the appellant's taxed costs of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted –(b) an amount equal to the respondent's costs –not being costs that were ordered to be paid by any other party; and(i) of the appeal in respect of which the certificate was granted; and(ii) where that appeal is an appeal in a sequence of appeals, the respondent's taxed costs of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted –(c) where the costs referred to in paragraph (b) are taxed at the instance of the respondent, an amount equal to the costs incurred by him or on his behalf in having those costs taxed.(2) [Section 9 Subsection (2) amended by No. 92 of 1974, s. 6 and Sched. 1 ]Where an indemnity certificate has been granted as provided in section 8 and the Registrar is satisfied that the respondent has unreasonably refused, or has neglected, or is unable through lack of means, to pay to the appellant the whole or any part of the costs referred to in paragraph (a) of subsection (1) or that payment of those costs or of that part thereof would cause the respondent undue hardship, the Registrar may direct that an amount equal to those costs or to the part of those costs not already paid by or on behalf of the respondent be paid from the Fund for and on behalf of the respondent to the appellant and thereupon the appellant is entitled to payment from the Fund in accordance with the direction of the Registrar and the Fund is discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction.(3) [Section 9 Subsection (3) amended by No. 45 of 1978, s. 4 ][Section 9 Subsection (3) substituted by No. 89 of 1986, s. 8 ]Notwithstanding subsections (1) and (2) , the aggregate of the amounts payable from the Fund pursuant to subsection (1) (b) and (c) shall not exceed the amount so payable pursuant to subsection (1) (a) .
10. Power of Supreme Court to grant indemnity certificate to successful appellant in certain cases
[Section 10 Amended by No. 19 of 1990, s. 5 ][Section 10 Substituted by No. 2 of 2022, Sched. 1, Applied:18 Mar 2022](1) Where –the Supreme Court may, on application made in that behalf, grant to the appellant in the appeal or to one or more of several appellants in the appeal an indemnity certificate in respect of the appeal.(a) there is an appeal from the decision of a court of summary jurisdiction to the Supreme Court; and(b) the respondent does not appear either in the proceedings before the court of summary jurisdiction or on the appeal; and(c) the appeal succeeds but the Supreme Court refuses to order the respondent to pay the appellant's costs of the appeal –(2) Notwithstanding subsection (1)(b) , where an appeal succeeds in criminal proceedings, the Supreme Court may grant to the appellant in the appeal or to one or more of several appellants in the appeal an indemnity certificate in respect of the appeal.(3) Subsection (2) does not apply in respect of an appellant to whom legal aid, within the meaning of the Legal Aid Commission Act 1990 , has been provided.
11. Effect of indemnity certificate granted to appellant
(1) Subject to this Act, where an appellant in an appeal has been granted an indemnity certificate, the certificate entitles the appellant to be paid from the Fund –(a) an amount equal to the appellant's taxed costs of the appeal in respect of which the certificate was granted; and(b) an amount equal to the costs incurred by the appellant in having those costs taxed.(2) [Section 11 Subsection (2) amended by No. 45 of 1978, s. 5 ]Notwithstanding anything in subsection (1) , the amount payable from the Fund to an appellant under any one indemnity certificate granted to him pursuant to section 10 shall not in any case exceed the sum of $300.
12. Indemnity certificate vacated in certain circumstances
(1) An indemnity certificate granted to a respondent in respect of an appeal, being an appeal in a sequence of appeals, is vacated if –(a) in a later appeal in the sequence the successful party is the one to whom the indemnity certificate is granted; or(b) an indemnity certificate is granted in respect of a later appeal in the sequence and the respondent to the earlier appeal is a party to the later appeal.(2) An indemnity certificate granted to an appellant in respect of an appeal to the Supreme Court is vacated if the appellant is a party to a successful appeal from the decision of the Supreme Court.
13. Indemnity certificate to have no effect in certain circumstances
(1) [Section 13 Subsection (1) amended by No. 92 of 1974, s. 6 and Sched. 1 ]An indemnity certificate granted to a respondent in respect of an appeal (in this subsection referred to as "the first appeal") has no effect –(a) where a time is limited by law for appealing from the decision in the first appeal, during the time so limited;(b) where an appeal lies from the decision in the first appeal but no time is so limited, until –whichever first happens; and(i) an application for leave to appeal from that decision has been determined and, where leave is granted, the appeal from that decision is instituted; or(ii) the respondent lodges with the Registrar an undertaking in writing by the respondent that the respondent will not appeal or seek leave to appeal from that decision –(c) notwithstanding anything in the foregoing provisions of this subsection, where the decision in the first appeal is the subject of an appeal, during the pendency of the last-mentioned appeal.(2) An indemnity certificate granted to an appellant in respect of an appeal (in this subsection referred to as "the first appeal") has no effect –(a) where a time is limited by law for appealing from the decision in the first appeal, during the time so limited;(b) where an appeal lies from the decision in the first appeal but no time is so limited, until –whichever first happens; and(i) an application for leave to appeal from that decision has been determined and, where leave is granted, the appeal from that decision is instituted; or(ii) the expiration of a period of 3 months after the determination of the first appeal –(c) notwithstanding anything in the foregoing provisions of this subsection, where the decision in the first appeal is the subject of an appeal, during the pendency of the last-mentioned appeal.(3) Where an appeal and a later appeal or later appeals form a sequence of appeals and the indemnity certificate has not been vacated under section 12 a reference in this section to the decision in the first appeal (within the meaning of subsection (1) or subsection (2) ) shall be construed as including a reference to the decision in the later appeal or in each of the later appeals, as the case may be, and a reference to the pendency of the first appeal shall be construed as including a reference to the pendency of the later appeal or of each of the later appeals, as the case may be.(4) [Section 13 Subsection (4) amended by No. 92 of 1974, s. 6 and Sched. 1 ]Where an amount is paid to an appellant or for or on behalf of an appellant by the Registrar in respect of an appeal to the Supreme Court and thereafter the appellant is a party in a successful appeal from the decision of the Supreme Court, the appellant shall, on demand made by the Registrar, pay to the Registrar any amount paid to him or on his behalf under the indemnity certificate and that amount may be recovered by the Registrar from the respondent as a debt due to the Registrar by action in a court of competent jurisdiction.(5) [Section 13 Subsection (5) amended by No. 92 of 1974, s. 6 and Sched. 1 ]Where an undertaking has been given by a respondent under the foregoing provisions of this section and thereafter he seeks leave to appeal or appeals from the decision to which the undertaking relates, the respondent shall, on demand made by the Registrar, pay to the Registrar any amount paid to him, or on his behalf, under the indemnity certificate and that amount may be recovered by the Registrar from the respondent as a debt due to the Registrar by action in a court of competent jurisdiction.(6) [Section 13 Subsection (6) amended by No. 92 of 1974, s. 6 and Sched. 1 ]An amount paid to or recovered by the Registrar under subsection (4) or subsection (5) shall be paid into the Fund.(7) Nothing in this section affects the operation of section 12 .
14. Powers of court with respect to granting of indemnity certificates
[Section 14 Substituted by No. 19 of 1990, s. 6 ](1) A court to which an application for an indemnity certificate is made may –(a) grant the application; or(b) refuse the application; or(c) grant the application but order that the indemnity conferred by the certificate be limited to such portion of the costs of the appeal as the court considers appropriate.(2) A court which grants an indemnity certificate in respect of an appeal may, if the appeal is one in a sequence of appeals, order that the indemnity conferred by the certificate be limited to such portion of the costs of that sequence of appeals as the court considers appropriate.(3) For the purposes of subsections (1) and (2) a court may have regard to any matters it considers relevant and, in particular, may have regard to the conduct of the appeal or of any proceedings prior to the appeal by or on behalf of the applicant.(4) An appeal does not lie from a decision of a court made pursuant to this section.
15. Abortive proceedings and new trials after proceedings discontinued
[Section 15 Subsection (1) amended by No. 19 of 1990, s. 7 ](1) [Section 15 Subsection (1) amended by No. 45 of 1978, s. 6 ]Where after the commencement of this Act –any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, is entitled, where there has been a new trial in the proceedings, to be paid from the Fund the costs that he or she has incurred in the proceedings before they were rendered abortive or the conviction was quashed or the hearing was discontinued, together with the costs that he or she has incurred in the taxation of those costs at the instance of another party.(a) any civil or criminal proceedings are rendered abortive by the death, retirement, resignation, or protracted illness of a judicial officer before whom the proceedings are heard or by disagreement on the part of the jury where the proceedings are with a jury;(b) an appeal from the conviction of a person (in this section referred to as "the appellant") convicted on indictment is upheld and a new trial is ordered; or(c) [Section 15 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by a judicial officer before whom the proceedings are heard for a reason not attributable in any way to the act, neglect, or default, in the case of civil proceedings, of all or of any one or more of the parties thereto or their Australian legal practitioners, or, in the case of criminal proceedings, of the accused or his Australian legal practitioners, and the judicial officer grants a certificate–(i) [Section 15 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] in the case of civil proceedings, to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect, or default of all or any one or more of the parties to the proceedings or of their Australian legal practitioners; or(ii) [Section 15 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] in the case of criminal proceedings, to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect, or default of the accused or of his Australian legal practitioners–(1A) [Section 15 Subsection (1A) inserted by No. 19 of 1990, s. 7 ]Notwithstanding subsection (1) , a person is only entitled to be paid costs from the Fund under that subsection to the extent that, by reason of the proceedings being rendered abortive or the conviction being quashed or the hearing being discontinued –(a) the work or matter in respect of which those costs have been incurred has not been of value or assistance to that person in the new trial; and(b) those costs have been incurred by that person uselessly.(2) A judicial officer presiding at the hearing of any proceedings referred to in subsection (1) is, by force of this subsection, authorized to issue such certificate as is referred to in paragraph (c) of that subsection.(3) For the purposes of this section, where a judicial officer presiding at the hearing of any criminal proceedings directs that those proceedings be discontinued with a view to other criminal proceedings based on the facts alleged against the accused being instituted, a new trial shall be deemed to have been ordered by the judicial officer.(4) [Section 15 Subsection (4) added by No. 49 of 1988, s. 4 ]In this section, the expression civil or criminal proceedings includes –(a) any proceedings of a civil or criminal nature; and(b) any such proceedings before a judicial officer exercising jurisdiction pursuant to an Act of the Commonwealth.
16. New trial on ground of excessive or inadequate damages
[Section 16 Subsection (2) amended by No. 45 of 1978, s. 7 ][Section 16 Subsection (2) amended by No. 89 of 1986, s. 10 ](1) Subject to this section, where after the commencement of this Act a new trial is ordered in an action on the ground that the verdict of the jury was against the evidence or the weight of the evidence or that the damages awarded in the action were excessive or inadequate, the respondent to the motion for the new trial is entitled to be paid from the Fund –(a) an amount equal to the costs (if any) of the appellant in the motion for, and upon, the new trial, being costs ordered to be paid and actually paid by or on behalf of the respondent;(b) an amount equal to the respondent's taxed costs of the motion for, and upon, the new trial, being costs that are not ordered to be paid by any other party; and(c) where the costs referred to in paragraph (b) are taxed at the instance of the respondent, an amount equal to the costs incurred by him or on his behalf in having those costs taxed.(2) [Section 16 Subsection (2) amended by No. 92 of 1974, s. 6 and Sched. 1 ]Notwithstanding anything in subsection (1) –(a) where the Registrar is satisfied that the respondent has unreasonably refused, or has neglected, to pay the whole or any part of the costs referred to in paragraph (a) of that subsection or that payment of those costs or of any part thereof would cause the respondent undue hardship, the Registrar may direct in writing that an amount equal to those costs or to the part of those costs not already paid by or on behalf of the respondent be paid for and on behalf of the respondent to the appellant from the Fund, and thereupon the appellant is entitled to payment from the Fund in accordance with the direction and the Fund is discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction; and(b) where the respondent has been ordered to pay the appellant's costs in the motion for, and upon, the new trial, the aggregate of the amounts payable from the Fund pursuant to paragraph (b) and paragraph (c) of subsection (1) shall not exceed the amount payable from the Fund pursuant to paragraph (a) of that subsection.(c) . . . . . . . .
17. Amount payable where court refuses to sanction a compromise in an action brought by an infant plaintiff
[Section 17 Subsection (2) amended by No. 45 of 1978, s. 8 ][Section 17 Subsection (2) amended by No. 89 of 1986, s. 11 ](1) Where a court refuses to sanction the compromise of an action brought by an infant plaintiff and on the trial of the action the amount of the judgment obtained by the plaintiff is an amount not greater than the amount that the defendant had agreed to pay under the compromise and the infant plaintiff or his next friend is ordered to pay the whole or any part of the defendant's costs of the action on any ground, including the payment of money into court by the defendant, the infant plaintiff or his next friend, as the case requires, is entitled to be paid from the Fund –(a) an amount equal to the costs ordered to be paid by the infant plaintiff to the defendant and actually paid by or on behalf of the infant plaintiff or his next friend;(b) an amount equal to the infant plaintiff's taxed costs of the action incurred, being costs that are not ordered to be paid by any other party; and(c) where the costs referred to in paragraph (b) are taxed at the instance of the infant plaintiff or his next friend an amount equal to the costs incurred by the infant or on his behalf in having those costs taxed.(2) [Section 17 Subsection (2) amended by No. 92 of 1974, s. 6 and Sched. 1 ]Notwithstanding anything in subsection (1) –(a) where the Registrar is satisfied that the infant plaintiff or his next friend has unreasonably refused, or has neglected, or is unable through lack of means, to pay the whole or any part of the costs referred to in paragraph (a) of that subsection or that payment of those costs or of that part thereof would cause the infant plaintiff or his next friend undue hardship, the Registrar may direct in writing that an amount equal to those costs or to the part of those costs not already paid by or on behalf of the infant plaintiff or his next friend be paid for and on behalf of the infant plaintiff or his next friend to the defendant from the Fund, and thereupon the defendant is entitled to payment from the Fund in accordance with the direction and the Fund is discharged from liability to the infant plaintiff or his next friend in respect of those costs to the extent of the amount paid in accordance with the direction; and(b) the aggregate of the amounts payable from the Fund pursuant to paragraph (b) and paragraph (c) of subsection (1) shall not exceed the amount payable from the Fund pursuant to paragraph (a) of that subsection.(c) . . . . . . . .
18. Payments to person's Australian legal practitioner
[Section 18 Amended by No. 92 of 1974, s. 6 and Sched. 1 ][Section 18 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] An amount that is payable to a person from the Fund may, if the Registrar thinks fit, be paid to that person's Australian legal practitioner, and on payment to his Australian legal practitioner the Fund is discharged from liability to that person in respect of that amount.
19. No indemnity certificates or other relief in certain cases
(1) An indemnity certificate shall not be granted in respect of an appeal from proceedings begun in a court of first instance before the commencement of this Act.(2) [Section 19 Subsection (2) amended by No. 45 of 1978, s. 9 ]An indemnity certificate shall not be granted in favour of the Crown.
[Section 19A Inserted by No. 45 of 1978, s. 10 ](1) No payment shall be made out of the Fund by the Registrar unless there is submitted an itemised bill of costs for taxation by a taxing officer of the Supreme Court.(2) [Section 19A Subsection (2) amended by No. 89 of 1986, s. 12 ]On every such taxation the taxing officer shall allow all such costs, charges, and expenses as shall appear to him to have been necessary or proper, but nothing in this section permits any payment from the Fund of an amount in excess of any limit fixed by the regulations.(3) [Section 19A Subsection (3) inserted by No. 89 of 1986, s. 12 ]A taxing officer may impose a taxing fee in respect of the taxation of a bill of costs under subsection (1) .(4) [Section 19A Subsection (4) inserted by No. 89 of 1986, s. 12 ]A taxing fee imposed under subsection (3) –(a) shall be an amount determined in accordance with the Rules of the Supreme Court;(b) shall be payable out of the Fund; and(c) shall be disregarded for the purpose of calculating the maximum amount payable under this Act.(5) [Section 19A Subsection (5) inserted by No. 89 of 1986, s. 12 ]Where a person entitled to a payment out of the Fund is dissatisfied with the allowance or disallowance by a taxing officer of the whole or a part of an item in a bill of costs taxed by him, the taxing officer shall, on application by that person, review the taxation.(6) [Section 19A Subsection (6) added by No. 89 of 1986, s. 12 ]Where a person who is so entitled is dissatisfied with a certificate or allocatur granted by a taxing officer on a review referred to in subsection (5) , a judge may, on application by that person –but the certificate or allocatur is final and conclusive as to any matter that is not the subject of the further review.(a) further review the taxation as to the whole or part of an item referred to in that subsection; and(b) make such order relating to the taxation as he thinks just –
[Section 19B Inserted by No. 89 of 1986, s. 13 ]The forms to be used for the purposes of this Act shall be such forms as the Attorney-General may approve.
[Section 20 Amended by No. 89 of 1986, s. 14 ]The Governor may make regulations for the purposes of this Act and, in particular and without limiting the generality of this section, may make regulations for or with respect to –(a) the making of payments from the Fund;(b) the taxation or assessment of costs for the purposes of this Act in circumstances not provided for under the rules of the appropriate court or where a party to an appeal refuses or neglects to tax his costs;(c) prescribing officers by whom bills of costs may be taxed for the purposes of this Act in different courts or in different jurisdictions of a court;(d) regulating the preparation and service of bills of costs proposed to be taxed for the purposes of this Act; and(e) regulating the review of any such bill of costs by a taxing officer or a judge.