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12 March 1991 - Current

 
APPEAL COSTS BILL
Page 458
8 October 1998
ASSEMBLY Second Reading WADE
                               APPEAL COSTS BILL
                                 Second reading

  Mrs WADE (Attorney-General) -- I move:
That this bill be now read a second time.
The bill repeals  the current Appeal Costs Act  1964 and replaces it with a new,
simpler  and  clearer act. In  so  doing, the  bill  implements the government's
justice  policy  objective  of  reforming  the justice  system  so  that  it  is
accessible and efficient.
The Appeal Costs Act originated as a form of compulsory insurance.

It was based on the premise that, although the majority of legal disputes can be
resolved  in  one  substantive  hearing,  in  a  small proportion of cases it is
necessary for an appeal or a re-hearing. For example, a party may have to appeal
to  the  Court  of  Appeal  or the High  Court  because  there  are  conflicting
authorities or the area of law in question is new. Equally, in a small number of
cases it is necessary to have  a  re-hearing  because  the  original hearing was
aborted or discontinued: for example, because the jury had to be discharged. The
act was designed to apply only to those cases where the appeal or re-hearing was
necessary.  It does  not apply if an appeal is brought simply because  the party
who lost at the first hearing was dissatisfied with the decision.
Since its  enactment  in  1964,  the  current  act has undergone a succession of
substantial amendments.  However, it has never been comprehensively reviewed. As
a consequence, the coherence of the act has been  undermined  and anomalies have
arisen.

The principal objective  of  this bill is  to address these inconsistencies  and
anachronisms  to ensure that the underlying policies of  the appeal costs scheme
are properly reflected in the legislation.
The basis for granting an  indemnity  certificate has been made simpler and more
consistent under the bill. The bill provides  that  the  decision  to  grant  or
refuse  a  certificate following a successful appeal is in the discretion of the
court.
For example, a  party  may  have succeeded in a trial by deliberately misleading
the trial judge. The losing party  may then have to appeal against the judgment.
The appellate  court may  allow the appeal and order the respondent  to pay  the
appellant's costs.

In these circumstances the court may refuse to grant an indemnity certificate to
the respondent, on the ground that if the respondent had not misled the judge in
the court below, it would not have been necessary to have the appeal.
Finally, the bill makes some important reforms in  relation  to the Appeal Costs
Board.  The  provisions which  deal  with  the board  have  been modernised  and
eligibility to membership of the board  has  been  broadened  to ensure that the
board reflects a wide range of experience and expertise beyond  that  of current
legal practitioners.
Section 85 statement

Clause  38  of the  bill  is  intended  to alter  or  vary  section  85  of  the
Constitution Act 1975 to the extent necessary to prevent the bringing before the
Supreme Court of an appeal against a grant or refusal by a court of an indemnity
certificate.
The reason  for  altering or varying section  85  in this way is  to prevent the
further  escalation of  costs. A  major objective of the bill  is to  reduce the
impact on  litigants of  the costs  of appeals.  It would be undesirable if,  in
carrying 
out this objective,  the  bill  were  to provide an opportunity to bring further
appeals.


Page 459
The prohibition of appeals against the granting or refusal of an indemnity certificate in clause 38 re-enacts the prohibition contained in section 17(1) of the current act. Conclusion The bill will give effect to the government's justice policy objective of reforming the justice system to ensure that it is accessible, efficient and cost effective and that it has the confidence of the public. I commend the bill to the house. Debate adjourned on motion of Mr HULLS (Niddrie). Debate adjourned until Thursday, 22 October.