Proctor : September 2017
29 PROCTOR | September 2017 4. The hearing of any criminal proceeding is discontinued and a new trial ordered for a reason not attributable in any way to the act, neglect or default of the accused or the accused’s legal representatives, and the presiding judge, magistrate or justice grants a certificate 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 the accused’s legal representatives. 12 Subject to falling within one of the four circumstances above, any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, who either: 1. pays or is ordered to pay additional costs, or 2. on whose behalf additional costs are paid or ordered to be paid by reason of the new trial shall be entitled to be paid from the fund the costs the board considers have been thrown away or partly thrown away by the person or on the person’s behalf in the proceedings. 13 The emphasised words were introduced by the recent amendments to the Act. They limit the costs which can be claimed and so claimants should focus their attention, and the documents lodged with the claim, on costs which have been thrown away, including justifying why the costs claimed have been thrown away. A (replacement) section 22(3) was introduced by the amendments and clarifies what ‘costs thrown away’ means. It provides that costs thrown away in relation to proceedings include costs that are reasonably incurred before, but are wasted when: a. the proceedings were rendered abortive b. the conviction is quashed, or c. the hearing of the proceedings is discontinued. How to claim payment under section 22 of the Act Section 6 of the regulation provides that, to claim payment from the fund under section 22 of the Act, a claimant must complete and lodge an application in the approved form along with the following documents: 1. a copy of any order or transcript evidencing a fact mentioned in section 22(2)(a) of the Act 2. a copy of any order, for a new trial, mentioned in section 22(2)(b) of the Act 3. if the order does not show it was made on an appeal on a question of law, a copy of any transcript showing that fact 4. any certificate granted under section 22(2)(c) of the Act 5. an itemised bill of costs for all costs relating to the claimant of the original trial and of the new trial that identifies each cost of the original trial thrown away or partly thrown away 6. a copy of any order to pay additional costs of a new trial 7. a copy of a receipt, or other documents, relied on to show the payment of any additional costs of a new trial 8. sworn evidence of any other facts relied on. Section 8 of the regulation enables the board to require a claimant to provide any additional evidence it considers reasonably necessary to consider the claim. Again, although it is not stated in the regulation, it assists if a claimant can include all relevant costs agreements entered in relation to the matter as this assists the board in assessing whether the costs are being properly claimed and are reasonable. Conclusion If you are acting for a client who wishes to claim payment from the fund, you need to: 1. Ensure that each of the elements of the particular section of the Act, being the section which your client wishes to rely on to assert an entitlement, are met and that your client can prove this through the provision of documents (such as an indemnity certificate, order, transcript) and an affidavit in which you or your client depose to the facts required to be established by the section. 2. Ensure that your client is not claiming more than their entitlement under the Act or the regulation. For example, take the time to identify (and perhaps even justify) the costs thrown away within the meaning of section 22(3) of the Act rather than just submitting a claim for all costs which leaves the board to identify those costs which are costs thrown away for itself. 3. Ensure that each of the documents identified in the regulation are completed (if applicable) and provided to the board via the Department of Justice and Attorney-General. 4. Ensure that you also provide a costs agreement entered with your firm and, if applicable, any costs agreement between your firm and any counsel. 5. Ensure that you include any documents associated with the cost of preparing the claim for payment from the fund, including any bill issued by a costs assessor. 6. Respond promptly to any requests from the board for more information or documents. Kylie Downes QC is a Brisbane barrister and member of the Proctor editorial committee Back to basics Kylie Downes QC explains the types of application which can be made for payments under the recently amended Appeal Costs Fund Act 1973. Notes 1 Sections 4 and 5 of the Act. 2 Section 14. 3 Section 9 Appeal Costs Fund Regulation 2010. 4 Section 5(6) of the Act. 5 Section 14(1). 6 Section 15(1). 7 Section 15(2). 8 Section 16(3) of the Act; section 14(1) Appeal Costs Fund Regulation 2010. 9 Section 22(2)(a) of the Act. 10 Section 22(2)(b). 11 Section 22(2)(c)(i). 12 Section 22(2)(c)(ii). 13 Section 22 (2).