12 March 1991 - Current
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.
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.