All claims for fees and disbursements made by practitioners in legally aided matters must be submitted via Grants Online, and practitioners must accept payment for legally aided matters via electronic funds transfer.
Where the approval from Legal Aid NSW covers counsel's fees, the proforma invoice for counsel's fees must be reassigned to counsel to enable counsel to submit the invoice via Grants Online.
Fees and disbursements may only be claimed after the work covered by the fees has been completed, or after the cost of the disbursement has been incurred.
Please note that practitioners are required to submit claims within 30 days of completion of the work covered by the proforma invoice (see paragraph 7 below).
All solicitor fees, counsel's fees and disbursements approved under the grant of aid will be covered by an item on the proforma invoice issued to the assigned practitioner. These items (fees for solicitor or counsel, and disbursements) are collectively referred to as work items.
Practitioners may not claim for any fees or disbursements which have not been the subject of a specific approval from Legal Aid NSW via a proforma invoice.
Each extension which is approved will be covered by at least one proforma invoice, and each invoice will contain at least one work item.
The grant approval will outline which work items are approved and on what basis.
Legal Aid NSW fees are set in a number of ways.
Lump sum fees
Where a work item is paid as a lump sum, the work item covers all of the work outlined in the approval. The fee is not set on a case by case basis and is not dependent on the actual work involved in any particular matter. It is expected that practitioners who do the approved work claim the lump sum fee in each case.
Examples of work items paid by way of a lump sum
- Preparation component of the summary crime or Children's Court crime grant
- Initial stage of proceedings in the Family Court
- Preparation component of the interim hearing approval in family law matters
Unit based fees
Most court hearings, and some other work items, are paid on a unit basis, usually hours or days. The approval will allow a maximum number of units. In some instances, the maximum number of units is the same for all approvals. In other instances, the number of units is set by the grants officer at the time of the approval. Practitioners may claim the actual number of units they have undertaken, up to the maximum approved.
Examples of unit based fees include
- Hearing time in defended summary crime hearings (hours)
- Hearing time in interim hearings in family law (hours)
- Indictable trial court time (days)
Fixed limit fees
Most disbursements are funded on a fixed limit basis.
Many disbursements, including psychiatric and psychological reports and some travel allowances, are subject to a fee scale. Other disbursements, for example, fees for process servers, not currently subject to a fixed fee scale.
Where a fee scale applies, practitioners may only claim disbursements in accordance with the fee scale, even if the actual work item allows a higher amount to be claimed. In other cases, practitioners may claim reasonable expenditure up to the limit approved and subject to any specific directions from Legal Aid NSW about what may be claimed in any given case. Evidence of the disbursement must be retained on file. Where reasonable unitemised (general) disbursements have been approved (for example photocopying, faxes), practitioners must retain evidence on their file of how the amount claimed is calculated.
When counsel's fees are approved, a separate proforma invoice will be issued for counsel's fees. This invoice will be initially allocated to the assigned practitioner. The assigned practitioner must reassign the invoice, via Grants Online, to the barrister who has been retained in the matter. This will enable the barrister to claim his or her fees directly from Legal Aid NSW.
When a claim is submitted, the practitioner must certify that the claim is correct. This certification can only reasonably be made by the practitioner who has performed work in the matter. Therefore, before submitting a claim, the practitioner must ensure that the claim accurately reflects the work performed. Fees may only be claimed after the work covered by the claim has been completed.
Where work items are claimed on a unit basis, the actual time spent on the activity must be claimed. For example, for court time, the actual time spent appearing in court should be claimed, to the nearest half hour.
Work items can only be claimed for the specific purpose for which they were approved. For example, hours specified as being for court time cannot be claimed for preparation work. Similarly, hours allowed for preparation cannot be claimed for another purpose such as court attendance or travel. Court time for a final hearing / trial may only be claimed for the final hearing / trial and not for mentions or procedural hearings.
Some work items require practitioners to complete "Service dates", that is the date/s on which the work was done.
Some work items can be partially claimed.
For example, if a practitioner has approval for a five day hearing which is adjourned part heard after three days, they can claim the first three days after these days have concluded. The remaining two days remain available to be claimed once the final two days have concluded, without the need to apply for an extension. Unused funds can only be claimed if the practitioner does not indicate on the initial claim that it is the final claim for that proforma invoice.
Where a claim is the final claim for an invoice or for a file, the practitioner must indicate that the claim is the final claim and complete any necessary file outcome form.
Legal Aid NSW requres practitioners to submit claims and, if appropriate, the file outcome form within 30 days of completion of the work items covered by the proforma invoice.
All fees quoted in Legal Aid NSW fee scales and approval letters are quoted exclusive of GST. Where the payee firm is registered for GST, the Grants Online claim form will calculate the GST and include it in the claim.
Where the payee firm is not registered for GST, the claim form will not add any GST to the amount claimed. Practitioners in firms which are not registered for GST should note claims must be limited to the fixed fees set by the fee scale.
Some proforma invoices (such as for conduct money or filing fees) contain two line items – one adds GST to the claim and the other does not. Private practitioners should use the "WITH GST" line item. Even where the practitioner does not pay GST when a subpoena is issued, the provision of the conduct money is treated as a taxable supply by the practitioner and GST should be added to the claim submitted to Legal Aid NSW. The "NO GST" line item is included on the proforma invoice for use only by Legal Aid NSW inhouse solicitors in appropriate situations.
Example
The fee scale allows $1000 (GST exclusive) for counsel's fees. The assigned firm is not registered for GST and does not reassign the invoice to counsel to enable counsel to claim directly from Legal Aid NSW. Counsel is registered for GST and invoices the assigned firm $1000 + $100 GST.
The assigned firm is only entitled to claim $1000 from Legal Aid NSW. Legal Aid NSW cannot pay the firm as the entire $1100 would be exclusive of GST which is above the fee scale.
This issue does not occur if a practitioner who is not registered for GST reassigns the proforma invoice for counsel's fees to the barrister who has been engaged in the matter as the barrister claims directly from Legal Aid NSW at the correct rate.
In the Claim Enquiry function in Grants Online, practitioners can see whether a claim has been paid. If the claim has been paid, details of how it was paid eg BY ELECTRONIC TRANSFER and the date and reference will be displayed.
Grants for family dispute resolution conferences include a proforma invoice to pay the FDRP. The FDRP invoice must not be claimed by the assigned practitioner. It will be used by Legal Aid NSW to pay the FDRP.
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