s 1Short title
This Act may be cited as the Suitors’ Fund Act 1964.
This Act may be cited as the Suitors’ Fund Act 1964.
Subject to subsection (2), this Act shall come into operation on a date to be fixed by proclamation.
It shall not be necessary to proclaim that the whole Act shall come into operation on one day, but the several sections of this Act may be proclaimed to come into operation on such days as are respectively fixed by proclamation.
In this Act unless the contrary intention appears —
appeal includes any proceeding by way of discharging or setting aside a judgment, a motion for a new trial, a case stated for the opinion of the Supreme Court on a question of law, an appeal under Part 2 of the Criminal Appeals Act 2004, and any other proceeding in the nature of an appeal;
company has the same meaning as it has in the Corporations Act 2001 of the Commonwealth;
costs in relation to an appeal includes the costs of an application for an indemnity certificate or a costs certificate in respect of the appeal, but does not include costs incurred in a court of first instance except where otherwise expressly provided;
costs certificate means a costs certificate granted under section 12A;
Department means the department of the Public Service principally assisting the Minister in the administration of this Act;
foreign company means a foreign company within the meaning of the Corporations Act 2001 of the Commonwealth, and a registrable Australian body (within the meaning of that Act) other than such a body formed or incorporated in the State;
indemnity certificate means an indemnity certificate granted under section 10;
sequence of appeals means a sequence of appeals in which each appeal that follows the last preceding appeal in the sequence is an appeal against the decision in the last preceding appeal;
the Board means the Appeal Costs Board constituted under this Act;
the Fund means the Suitors’ Fund established under this Act.
[Section 3 amended: No. 72 of 1969 s. 2; No. 57 of 1971 s. 3; No. 10 of 1982 s. 28; No. 58 of 1984 s. 2; No. 31 of 1993 s. 65; No. 34 of 1999 s. 61; No. 20 of 2003 s. 46; No. 59 of 2004 s. 141; No. 84 of 2004 s. 78.]
An agency special purpose account called the Suitors’ Fund is established under section 16 of the Financial Management Act 2006.
The following shall be credited to the Fund —
the amounts referred to in section 6(2);
any other moneys lawfully received by, made available to, or payable to the Board.
The amounts referred to in sections 11, 14, 14A, 14B, and 15 and the cost of the administration of this Act shall be charged to the Fund.
All interest derived from the investment of the Fund forms part of the Fund.
The Fund is, subject to this Act, under the direction, control and management of the Board.
Where the Board certifies in writing to the Treasurer that the amount of money standing to the credit of the Fund is, for the time being, insufficient for the purposes of this Act, the Board may borrow from the Treasurer such amounts as are sufficient for the time being to make up the deficiency.
(a) Any amount advanced to the Fund pursuant to subsection (6) shall be subsequently repaid to the Treasurer from moneys standing to the credit of the Fund by the Board, when money is available to the Fund to make the repayment.
The amount of any money so advanced by the Treasurer to the Fund is, while the money remains unpaid, a charge on the Fund.
Where the Board certifies in writing to the Treasurer that any money standing to the credit of the Fund is not immediately required for the purposes of this Act the Treasurer may temporarily invest so much of the money as he considers practicable so to do, as trust funds may be invested under Part III of the Trustees Act 1962 and shall cause all interest therefrom to be credited to the Fund.
The accounts relating to the Fund shall be audited by the Auditor General.
[Section 4 amended: No. 44 of 1977 s. 3; No. 58 of 1984 s. 3; No. 98 of 1985 s. 3; No. 49 of 1996 s. 64; No. 1 of 1997 s. 18; No. 28 of 2006 s. 47; No. 77 of 2006 Sch. 1 cl. 164(1) and (2).]
The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of departments apply to and in respect of the department and the Fund.
[Section 4A inserted: No. 98 of 1985 s. 3; amended: No. 31 of 1993 s. 66; No. 77 of 2006 Sch. 1 cl. 164(3).]
There shall be paid to the proper officer of the appropriate court —
upon the issue of any writ of summons whereby an action is commenced in the Supreme Court or The District Court of Western Australia;
upon the commencement of any case in the Magistrates Court under the Magistrates Court (Civil Proceedings) Act 2004; or
upon the issue of any summons or court hearing notice under the Criminal Procedure Act 2004 in respect of a prosecution notice to be dealt with by a court of summary jurisdiction,
in addition to any fee which may be payable in respect thereof under any Act or rules of any court, a levy of an amount prescribed by the regulations.
The levy is imposed.
The words “or The District Court of Western Australia”, in subsection (1)(a), are deemed to have been included therein on and from 1 April 1970.
The regulations may prescribe different amounts of levy for different processes or classes of process.
Nothing in this section is to be taken as limiting the operation of the Interpretation Act 1984 section 43.
[Section 5 amended: No. 113 of 1965 s. 8; No. 57 of 1971 s. 4; No. 59 of 2004 s. 141; No. 84 of 2004 s. 78; No. 8 of 2019 s. 4; No. 9 of 2019 s. 4.]
During the months of January, April, July and October of each year, the chief executive officer of the department shall cause to be prepared and sent to the Treasurer, a statement signed by him, specifying the total number of processes referred to in section 5, upon which a levy is payable under this Act, that appear from records in the custody or control of the department, to have been issued out of or returnable in the Supreme Court, The District Court of Western Australia, the Children’s Court or the Magistrates Court during the period of 3 months immediately preceding the first day of the month in which the statement is prepared.
The Treasurer shall, as soon as practicable after the receipt by him of the statement referred to in subsection (1), cause to be charged to the Consolidated Account (which is hereby to the necessary extent appropriated accordingly) and credited to the Fund, an amount equal to the total sum of the levy payable under section 5 that is credited to the Consolidated Account in respect of the processes specified in the statement.
[Section 6 amended: No. 58 of 1978 s. 2; No. 98 of 1985 s. 3; No. 6 of 1993 s. 11; No. 31 of 1993 s. 67; No. 49 of 1996 s. 64; No. 59 of 2004 s. 141; No. 77 of 2006 s. 4; No. 8 of 2019 s. 5.]
Payment shall not be made out of moneys standing to the credit of the Fund except upon and in accordance with a written direction of the Board.
The Board shall not issue such a direction unless it is satisfied that the payment from moneys standing to the credit of the Fund to which the direction relates is authorised by or under this Act and that the provisions of this Act relating to any claim for the payment have been complied with.
[Section 7 amended: No. 49 of 1996 s. 64.]
For the purposes of this Act there shall be a Board to be called the “Appeal Costs Board”.
The Board shall consist of 3 members appointed by the Governor of whom —
one shall be appointed as Chairman of the Board;
one shall be a person who is nominated in writing by the Law Society of Western Australia (Inc.) and who is willing to act as a member of the Board; and
one shall be a person who is nominated in writing by the Legal Practice Board established by the Legal Profession Uniform Law Application Act 2022 section 30 and who is so willing.
If either of the bodies referred to in subsection (2) does not within 30 days after being requested in writing by the Minister so to do, submit a nomination of a person as member of the Board, the Minister may, without the nomination, appoint an otherwise eligible person to be a member of the Board to represent the interests of the body in default and the person so appointed shall for all purposes be deemed to be duly appointed.
The Governor may at any time remove any person appointed to the Board and appoint another otherwise eligible person in his stead to represent, where the case requires, the interests of the body represented by the member in whose place he is appointed.
Each member appointed to the Board including the Chairman thereof, is entitled to hold office for such term not exceeding 3 years as the Governor specifies at the time of his appointment and is eligible for reappointment.
The exercise or performance of the functions or powers of the Board is not affected by reason only of there being a vacancy in the office of a member.
[Section 8 amended: No. 65 of 2003 s. 68(2); No. 74 of 2003 s. 114; No. 21 of 2008 s. 708; No. 9 of 2022 s. 424.]
The Chairman shall preside at all meetings of the Board at which he is present.
At a meeting of the Board 2 members constitute a quorum.
A question arising at a meeting of the Board shall be decided by a majority of the votes of the members present.
Where 2 members only are present at a meeting of the Board, if those members differ in opinion upon any question the decision on the question shall be deferred to a meeting of the Board at which all 3 members thereof are present.
Subject to this Act the Board may regulate its own proceedings.
The functions of the Board are —
to exercise and discharge the powers, authorities, duties, functions and obligations conferred and imposed on the Board by or under this Act; and
to advise the Minister upon any matter submitted by him to the Board for its advice that relates to the operation of this Act.
There may be appointed by the Governor a Secretary to the Board and such other officers as are necessary for carrying out the objects of this Act.
Where an appeal against the decision of a court in any proceedings —
to the Supreme Court;
to the High Court of Australia from a decision of the Supreme Court;
to the Queen in Council from a decision of the High Court of Australia given in an appeal from a decision of the Supreme Court; or
to the Queen in Council from a decision of the Supreme Court,
on a question of law succeeds, the Supreme Court may, upon application made to the Court in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal an indemnity certificate in respect of that appeal.
Whenever an appeal against the decision of a court in any proceedings to The District Court of Western Australia on a question of law succeeds, The District Court of Western Australia may, upon application made to it in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal an indemnity certificate in respect of that appeal.
The jurisdiction conferred upon the Supreme Court or The District Court of Western Australia by subsection (1) or (2) may be exercised by a judge of the Supreme Court or a District Court judge, as the case may be, sitting in chambers.
[Section 10 amended: No. 72 of 1969 s. 3; No. 58 of 1978 s. 3.]
Subject to this Act, where a respondent to an appeal has been granted an indemnity certificate, the certificate entitles the respondent to be paid from moneys standing to the credit of the Fund —
an amount equal to the appellant’s costs —
of the appeal in respect of which the indemnity certificate was granted; and also
where that appeal is an appeal in a sequence of appeals, of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate of indemnity was granted,
ordered to be paid and actually paid by the respondent;
an amount equal to the respondent’s costs —
of the appeal in respect of which the certificate was granted; and also
where that appeal is an appeal in a sequence of appeals, of an appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,
as taxed or agreed upon by the Board and the respondent or the respondent’s solicitor and not ordered to be paid by any other party; and
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 the costs taxed.
Where an indemnity certificate has been granted, and the Board is satisfied —
that the respondent unreasonably refuses or neglects or is unable through lack of means to pay to the appellant the costs referred to in subsection (1)(a) or any part of those costs; or
that payment of those costs or part of those costs would cause the respondent, undue hardship; or
that the respondent cannot be found and the costs or part of those costs have not already been paid by the respondent and the certificate of taxation in respect thereof is produced to the Board,
the Board may 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 moneys standing to the credit of the Fund for and on behalf of the respondent to the appellant, and thereupon the appellant is entitled to payment from moneys standing to the credit of the Fund in accordance with the direction of the Board and the Fund is discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction.
Notwithstanding the foregoing provisions of this section —
the aggregate of the amounts payable from moneys standing to the credit of the Fund pursuant to paragraphs (b) and (c) of subsection (1) shall not exceed the amount payable from moneys standing to the credit of the Fund pursuant to paragraph (a) of that subsection; and
the amount payable from moneys standing to the credit of the Fund to any one respondent pursuant to an indemnity certificate shall not in any case exceed the sum of $1 000 or such other amount as may from time to time be prescribed.
[Section 11 amended: No. 113 of 1965 s. 8; No. 49 of 1996 s. 64.]
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