New South Wales Consolidated Acts

SUITORS' FUND ACT 1951 - SECT 6

6 Costs of certain appeals

(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact, or

(b) to the High Court from a decision of the Supreme Court on a question of law,

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

(1A) Where an appeal against the decision of a court to the Industrial Relations Commission of New South Wales or to the District Court of New South Wales on a question of law succeeds, that Commission or Court, as the case may be, may, upon application made in that behalf, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

(1AA) Where an appeal under section 56A of the Land and Environment Court Act 1979 to the Land and Environment Court on a question of law succeeds, that Court may, upon application made in that behalf, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

(1B) For the purposes of this section, a taxing officer of a court shall, when acting as such a taxing officer, be deemed to be exercising the jurisdiction of a court of first instance.

(2) Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund:

(a) an amount equal to the appellant’s costs of:

(i) the appeal in respect of which the certificate was granted, and also

(ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,

ordered to be paid and actually paid by the respondent: Provided that where the Director-General is satisfied that the respondent is unable through lack of means to pay the whole of those costs or part thereof or that payment of those costs or part thereof would cause the respondent undue hardship, or where those costs or part thereof have not been paid by the respondent and the Director-General is satisfied that the respondent cannot be found after such strict inquiry and search as the Director-General may require or that the respondent unreasonably refuses or neglects to pay them, the Director-General may, if so requested by the appellant or the respondent, direct in writing that an amount equal to those costs or to the part of those costs not already paid by the respondent be paid from the Fund for and on behalf of the respondent to the appellant and thereupon the appellant shall be entitled to payment from the Fund in accordance with the direction and the Fund shall be discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction,

(b) fifty per centum or such other percentage as may be prescribed (at the time when the indemnity certificate is granted) in lieu thereof by the Governor by proclamation published in the Gazette of the amount payable from the Fund pursuant to paragraph (a) or, where no amount is so payable, an amount equal to the costs of:

(i) the appeal in respect of which the certificate was granted, and also

(ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,

as taxed, incurred by the respondent and not ordered to be paid by any other party: Provided that where an amount is payable from the Fund pursuant to paragraph (a), but the Director-General directs that the costs of the appeal or appeals referred to in subparagraph (i) or in subparagraphs (i) and (ii) incurred by the respondent and not ordered to be paid by any other party be taxed at the instance of the respondent or those costs are, without such a direction, taxed at the instance of the respondent, the amount payable from the Fund under this paragraph shall be the amount equal to those costs as so taxed, 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 the respondent in having those costs taxed.

Notwithstanding the foregoing provisions of this subsection:

(i) where the costs referred to in paragraph (b) are taxed at the instance of the respondent, the aggregate of the amounts payable from the Fund pursuant to that paragraph and paragraph (c) shall not exceed the amount payable from the Fund pursuant to paragraph (a).

(2A) The maximum amount payable from the Fund for any one appeal is:

(a) $20,000 in the case of an appeal to the High Court, or

(b) $10,000 in the case of any other appeal.

(2B) If more than one indemnity certificate has been issued in connection with the same appeal, the maximum amount payable from the Fund with respect to any one indemnity certificate is:

(a) an amount equal to the maximum amount payable from the Fund for that appeal divided by the number of indemnity certificates issued in connection with that appeal, or

(b) subject to subsection (2A), such other amount as may be determined by the court by which the indemnity certificate is issued.

(2C) Subsections (2A) and (2B) do not apply to appeals lodged before the commencement of those subsections.

(3) An indemnity certificate granted in respect of an appeal to the respondent to the appeal, being an appeal in a sequence of appeals, shall be vacated if:

(a) in a later appeal in the sequence the successful party is the one to whom the indemnity certificate was 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.

(4)

(a) An indemnity certificate granted in respect of an appeal to the respondent to the appeal shall have no force or effect:

(i) where a time is limited for appealing against the decision in the appeal-during the time limited for appealing against the decision in the appeal,

(ii) where an appeal lies against the decision in the appeal but no time is so limited-until an application for leave to appeal against the decision in the appeal has been determined and, where leave is granted, the appeal is instituted, or until the respondent lodges with the Director-General an undertaking in writing by the respondent that the respondent will not seek leave to appeal, or appeal pursuant to the leave granted, against the decision in the appeal, whichever first happens,

(iii) notwithstanding anything contained in subparagraph (ii) where the respondent gives the undertaking referred to in that subparagraph and thereafter seeks leave to appeal, or appeals, against the decision in the appeal-until the application for leave has been determined and, where leave is granted, the appeal is instituted,

(iv) notwithstanding anything contained in the foregoing provisions of this paragraph where the decision in the appeal is the subject of an appeal-during the pendency of the appeal.

Where the appeal and a later appeal or later appeals form a sequence of appeals and the indemnity certificate has not been vacated under subsection (3):

(v) the reference to the decision in the appeal in the foregoing provisions of this paragraph shall be construed as including a reference to the decision in the later appeal or in each such later appeal, as the case may be, and

(vi) the reference to the pendency of the appeal in those provisions shall be construed as including a reference to the pendency of the later appeal or of each such later appeal, as the case may be.

(b) Where an undertaking has been given by a respondent under the foregoing provisions of this subsection and thereafter the respondent seeks leave to appeal or appeals, as the case may be, against the decision to which the undertaking relates, the respondent shall, upon demand made by the Director-General, pay to the Director-General any amount paid to the respondent, or for and on behalf of the respondent, under the indemnity certificate or, if the respondent notifies the Director-General in writing of the respondent’s seeking leave to appeal or of the respondent’s appeal, as the case may be, any amount paid to the respondent, or for and on behalf of the respondent, under the indemnity certificate before the respondent gave the notification, and the amount concerned may be recovered by the Director-General from the respondent as a debt in any court of competent jurisdiction.
Any amount paid to, or recovered by, the Director-General under this subsection shall be paid by the Director-General into the Fund.

(c) Nothing in this subsection affects the operation of subsection (3).

(5) The grant or refusal of an indemnity certificate shall, except as provided by subsections (5A), (6) and (7), be in the discretion of the Supreme Court, Land and Environment Court, Industrial Relations Commission of New South Wales or District Court of New South Wales, as the case may be, and no appeal shall lie against any such grant or refusal.

(5A) Where a respondent to an appeal referred to in subsection (1), (1A) or (1AA) is a legally assisted person, the respondent shall, for the purpose of exercising the discretion referred to in subsection (5) and for the purpose of determining the amount which the respondent is entitled to be paid from the Fund:

(a) be deemed not to be a legally assisted person, and

(b) be deemed to have incurred such costs as have been incurred by any other person in the course of acting for the respondent as a legally assisted person.

(6) An indemnity certificate shall not be granted in respect of any appeal from proceedings begun in a court of first instance before the commencement of this Act.

(7) An indemnity certificate shall not be granted in favour of:

(a) the Crown,

(b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or

(c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the appeal to which the certificate relates was instituted before the commencement of the Legal Assistance and Suitors’ Fund (Amendment) Act 1970 .