How to apply to the Appeal Costs Board

Time limits apply

Section 35D of the Appeal Costs Act 1998 requires applications to be submitted within 12 months of the close of proceedings to which the certificate pertains to avoid expiry of the certificate.

The Appeal Costs Board can consider applications lodged out of time if it considers that it is in the interests of justice to do so (section 35E of the Appeal Costs Act 1998).

Supporting information and documents

Supporting information and document requirements vary according to the relevant section of the Act. Please read that section carefully to ensure you have supporting material for each requirement under the section. You will experience delays in your application if inadequate material is provided.

All applications to the Board require:

• a copy of the signed certificate or authenticated order of the court
• evidence of the costs that are being claimed, such as fee slips, back sheets, invoices or Victoria Legal Aid summaries; and
• other than applications under ss 6, 9 or 13, where the applicant is a body corporate, a statement of its eligibility regarding s 35A of the Appeal Costs Act 1998.

The following provides some guidance on the types of material required for specific sections:

Section 5 applications

All section 5 applications must include (in addition to the general matters referred above):

• where appellant costs are claimed, proof that those costs have been paid. The Appeal Costs Board cannot certify payment for appellant costs under section 5 until they have been paid by the respondent; and
• where costs have been assessed, details of that assessment.

Section 16 applications

All section 16 applications must include (in addition to the general matters referred above):

• proof that a new trial or hearing was ordered; and
• proof that the applicant has paid, or been ordered to pay, any additional costs for the new hearing or trial.

For the avoidance of doubt, section 16 does not apply to a ‘discontinuance’ within the meaning of the Criminal Procedure Act 2009.

Section 17 applications

All section 17 applications must include (in addition to the general matters referred above):

• the date on which the relevant court made the order for adjournment, which may be different to the date of the (adjourned) hearing and/or the date on which the indemnity certificate was granted; and
• where solicitor fees for instructing counsel at court are claimed, specifying the numbers of hours on each day that the solicitor instructed.

Maximum amounts payable

Certain sections of the Appeal Costs Act 1998 provide for an upper limit of legal costs payable by the Board, even for costs reasonably incurred.

For applications under sections 5 and 6:

• The maximum amount payable is $50,000.
• This cap applies to both appellant’s costs and respondent’s costs collectively (Doolkoora Pty Ltd v Stumpy Gully Holdings Pty Ltd (No 2) [2024] VSC 401, [62]-[63]).

For applications under section 17:

• Amounts are only payable for the party’s own costs of adjournment for the day on which the adjournment is granted and, if the court has certified, the next day on which the court sits (being a maximum available payment of two days).
• The Board can pay no more than the maximum amounts set by the Attorney-General and published in the Government Gazette (see sections 17(3) and (5)-(6) of the Appeal Costs Act 1998). The current limits are pursuant to, and can be found within Government Gazette G 39 27 September 2007 (External link).

After lodgement of the application

Applications to the Appeal Costs Board are placed before the Board and determined as soon as possible. Applicants can monitor the progress of their applications online.

Applicants are advised in writing of the Board’s determination.

The time required for applications is significantly reduced when adequate supporting material is included.

Legal advice

The Appeal Costs Board does not provide legal advice. The information on this page is provided for procedural assistance only and is of a general nature. If you still have difficulty understanding the process or have questions beyond what is covered by this information, we recommend that you obtain independent legal advice.