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Applicants please note:
When providing documentation to the Department of Communities and Justice (Legal) it is necessary to provide a copy of the costs agreement made out to the client and invoices, plus any other evidence in support of disbursements.
All applications and supporting material should be sent to:
Legal
Department of Communities and Justice
Locked Bag 5000
Parramatta NSW 2124
Please note that there is no application form which applicants are required to download and complete. The application takes the form of a letter to the Secretary, Department of Communites and Justice, care of Legal, enclosing the supporting material for the claim under the Act.
The Suitors' Fund Act 1951 provides for the establishment and maintenance of a fund to mitigate costs incurred in court proceedings through no fault of the parties, in certain circumstances. These circumstances are set out in sections 6, 6A and 6B of the Act.
Paper: 'The Suitors Fund Act 1951 (PDF, 713.3 KB)' by Valentino Musico, CSO Solicitor
The Secretary of the Department of Communities and Justice replaces the Director General as a Corporation Sole for the administration of the Fund and has the responsibility for its proper functioning and compliance with audit requirements. The Secretary is the Fund's legal figurehead.
The Secretary must approve all applications made under the Act, except for applications under section 6C, which must be approved by the Secretary with the concurrence of the Attorney General.
There are three broad categories of circumstances which may give rise to applications for payment from the Fund. They are:
Section 6 relates to successful appeals on a point of law (or fact, but only in the Supreme Court) and section 6B relates to a successful appeal on quantum only.
Judicial officers have the discretion to grant an indemnity certificate to an unsuccessful respondent. No appeal lies against a decision not to grant an indemnity certificate (section 6(5)).
An indemnity certificate (DOC, 30.0 KB) entitles the respondent to make an application for payment from the Fund. The original sealed indemnity certificate or a certified copy must be produced before an application can be finalised.
NOTE: The respondent must be personally liable for the payment of the appellant's costs. An example of where a respondent may not be personally liable is where a third party, such as an insurance company, has agreed to meet these costs.
Only the unsuccessful respondent(s) to proceedings is entitled to an indemnity certificate. An indemnity certificate cannot be granted to a successful respondent, or to the appellant under any circumstances. Only one indemnity certificate can be granted to a respondent in respect of an appeal. A certificate can be granted to more than one respondent to an appeal.
The Courts Legislation Further Amendment Act 1997 limits payment from the Fund in respect of any one appeal to $10,000 (or $20,000 for High Court appeals). If a number of certificates are granted by the Court, the Act provides for payment to be apportioned between the respondents. This amendment applies to appeals lodged on or after 2 February 1998.
Sections 6(7) and 6B(6) specify that an Indemnity Certificate cannot be granted to the:
Applications may be made by the unsuccessful respondent, his or her legal representative or a trustee appointed over the respondent's estate in bankruptcy or in probate. Where an unsuccessful respondent was in receipt of a grant of legal aid for the appeal proceedings, the application must be made by the Legal Aid Commission.
However, an appellant, or his or her legal representatives etc. can apply to the Fund where the respondent has been granted an indemnity certificate, but unreasonably neglects or refuses to pay the appellant's costs, or after diligent search and inquiry, the appellant cannot locate the respondent to enforce the order for costs (section 6(2)(a)).
A respondent who has been granted an indemnity certificate may, or may not, be ordered to pay the appellant's costs of the appeal. However, most indemnity certificates are granted where the respondent has been ordered to pay the appellant's costs of the appeal.
Where an indemnity certificate has been granted to a respondent who has not been ordered to pay the appellant's costs, the respondent may only recover his own costs as assessed. The costs of having the respondent's bill assessed may also be included in any payment from the Fund (section 6(2)(b)).
Where an Indemnity Certificate has been granted to the unsuccessful respondent, and the respondent has been ordered to pay the appellant's costs, the respondent may make an application for payment from the Fund for:
NOTE: The combined costs paid to the appellant and respondent cannot exceed the applicable limit (usually $10,000).
Payment of the respondent's costs cannot exceed that of the appellant's (section 6(2)((c)(i)). For example, if the appellant's assessed costs are $4,000, and the respondent's assessed costs are $6,000, the respondent is only entitled to $4,000 for his own costs AS WELL AS $4,000 for the appellant's costs (total $8,000).
If the appellant's costs exceed the sum payable from the Fund, the respondent remains liable for the payment of the remainder of the costs.
NOTE: The respondent must be personally liable for the payment of the appellant's costs. An example of where a respondent may not be personally liable is where a third party, such as an insurance company, has agreed to meet these costs.
Only assessed costs are normally allowed. Assessment ensures the parties claims are reasonable. The parties will usually need to provide a certificate, issued by a costs assessor, pursuant to the Legal Profession Act 2004.
If the assessment is not contested, the Secretary has the authority under section 6D to pay only those costs he considers reasonable.
If the appellant's costs are well over the applicable limit (eg. $20,000 Counsel's fees alone) it may be possible to dispense with the requirement for assessing the appellant's costs. This might also apply in relation to the respondent's costs where they have not been ordered to pay the appellant's costs.
If the parties reach agreement as to the costs to be paid. In this case, evidence is required from the appellant that an agreement has been reached (such as a formal agreement or advice on their letterhead). Further, evidence of negotiation of costs is needed to assist in determining the reasonableness of the agreed amount.
Before any payment can be made to the respondent the appellant's costs must have actually been paid by the respondent (section6(2)(a)). A receipt is required as evidence of this payment. A receipt may be in the form of a letter of acknowledgment from the appellant's solicitor, or a letter acknowledging the appellant's costs have been set off against an award of monies to be paid to the respondent.
However, pursuant to the requirements in section6(2)(a), if payment of the costs by the respondent would cause undue hardship, the respondent may request that payment from the Fund be made direct to the appellant.
Where a certificate is granted to an unsuccessful respondent, and a subsequent appeal is commenced, no payment can be made from the Fund until such time as the subsequent appeal is finalised. In short, all proceedings must be completed and no further appeals contemplated before a payment can be made from the Fund. This is because the orders of the previous court may be overturned on appeal, ie., the granting of the certificate may be rescinded.
Where a subsequent appeal does succeed the respondent is no longer entitled to payment from the Fund pursuant to the certificate granted in the earlier appeal (section 6(3)(b)).
Where a subsequent appeal does not succeed but a further indemnity certificate is granted and the respondent is a party to that appeal, the certificate granted is vacated, whether the respondent is granted the new certificate or not.
Where the respondent is granted an indemnity certificate following a sequence of appeals, they are entitled to the costs associated with all previous appeals as well, subject to the applicable limit (section 6(2)(b)).
The documents required to be provided to the Department in support of an application are:
(i) evidence that the appellant's costs have been satisfied, or
(ii) A statutory declaration from the respondent indicating his or her inability to pay the appellant's costs and requesting that the Fund pay these costs direct to the appellant, or
(iii) A statutory declaration or affidavit from the appellant setting out the respondent's refusal to pay, or the appellant's inability to locate the respondent, and requesting payment be made direct to the appellant. Substantive evidence in support must also be provided.
Either
(i) The Certificate of Assessment of the respondent's costs of the appeal, or
(ii) An election by the respondent to accept 50% of the appellant's assessed costs
NOTE: All documents must be originals or certified copies.
Before payment can be made pursuant to section 6A of the Act additional costs must have been incurred by way of a new trial having been had.
Under section 6A parties may be entitled to a payment from the Fund where:
Note In category (4) above, an application can only be made when a party or the accused, as the case may be, is granted an indemnity certificate by the court. The presiding Judge or Magistrate has a discretion as to whether to grant an Indemnity Certificate. There is no right of appeal against a decision not to grant an indemnity certificate.
Additional costs must be incurred by way of the new trial had. No payment can be made where no new trial has been had. So, notwithstanding that the previous proceedings have been aborted, if the matter is no-billed, or not proceeded with, or settled without a hearing commencing, payment cannot be made from the Fund.
In matters with a jury, it is generally accepted that a trial is commenced when the jury is empanelled and not at the mere reading of the indictment or charge. In matters without a jury, it is when the matter is called before the court for hearing and the parties indicate they are ready to proceed.
If a matter is finalised, whether by settlement, withdrawal or in some other manner after the jury has been empanelled or the parties have indicated they are ready to proceed and the court calls the matter on for hearing, a new trial has been had, and the applicant may be entitled to payment from the Fund.
The same test applies for determining whether a trial has been aborted or discontinued. A matter has not been discontinued or aborted because it has not been reached, ie. there has not been sufficient time to hear the matter, or because it has been adjourned.
The Act permits the Secretary to pay the applicant their original costs, or such part thereof, of the aborted or discontinued proceedings, so long as additional costs have been incurred (section 6A(1)(c)).
The original costs are restricted to those costs which are lost, thrown away or duplicated by virtue of the discontinued or aborted proceedings and the need for a new trial. So if a solicitor has done some preparatory work for a case which does not need to be done again for the new trial, the costs of this work will not be met from the Fund.
No appeal lies against the Secretary's decision to refuse a claim or to reduce a claim.
NOTE: The respondent must be personally liable for the payment of the appellant's costs. An example of where a respondent may not be personally liable is where a third party, such as an insurance company, has agreed to meet these costs.
In order to determine what costs should be paid from the Fund, the applicant must provide
Bills are assessed for reasonableness by the Crown Solicitor, who advises as to what costs should be paid.
A payment cannot be made to the Crown (which includes Legal Aid NSW), a corporation with a paid-up share capital of $200,000 or a company related to such a corporation.
The following documents are required in support of an application:
The Secretary, with the concurrence of the Attorney General may authorise payment in cases where:
This means the application cannot be paid from the Fund pursuant to section 6, 6A or 6B. For example, if a judicial officer resigns before finalising a matter, the application does not fall under section 6A(1)(a) because that section only provides for the death or protracted illness of a Judge. The application cannot be paid pursuant to section 6A(1)(c) either as the proceedings have not been discontinued and a new trial has not been ordered. Therefore, the claim can be considered under section 6C.
The general intent of the Act is to mitigate costs incurred in proceedings through no fault of the parties, in certain circumstances. The fundamental principle underlying the Act is that parties should not have to have two sets of proceedings to determine the one matter. It is not the purpose of the Act to assist in meeting costs unreasonably incurred, or incurred through the vicissitudes of litigation (including where proceedings are adjourned).
Applications should be made in writing to the Secretary clearly setting out the circumstances of the proceedings, and stating why it is believed the application should be considered under section 6C.
31 Aug 2023