Costs and Fees guidelines

These guidelines are intended to be read with the Costs and Fees policies. The guidelines provide guidance on how the policies are to be applied by setting out certain requirements which need to be observed when administering grants of legal aid.  

1. Costs in indictable matters

1.1 - Commonwealth criminal law – Expensive Cases Fund

The Commonwealth Criminal Law – Expenses Cases Fund (the Fund) has been established to assist Legal Aid NSW to manage high, one-off costs associated with providing assistance for a particular criminal law matter.

Legal Aid NSW may apply to the Fund in cases where it is satisfied that the cost of running a criminal matter exceeds the cap for criminal indictable matters.

The Commonwealth's guideline for applying to the Fund may be obtained from Grants, Legal Aid NSW.

1.2 - Costs in indictable trials

Do the costs cover transcripts in trials?

The grant of aid for a trial does not extend to obtaining court transcripts during the trial.

1.3 - Transcript costs in appeals

Legal Aid NSW will not pay for the transcript of a trial to determine the merit of an appeal to the NSW Court of Criminal Appeal.

1.4 - Costs in cross applications in Apprehended Domestic Violence Orders proceedings

Legal Aid NSW will not pay for the transcript of a trial to determine the merit of an appeal to the NSW Court of Criminal Appeal.

2. Risk of liability for adverse costs in federal courts and tribunals

Procedure for advising clients about liability in federal courts and tribunals

Legal Aid NSW officers should use the following terms to advise clients in grant letters of the liability for adverse cost orders.

  • Section 47(1)(b) of the Act applies to New South Wales courts and tribunals only. As these proceedings come within the jurisdiction of a federal court or tribunal, this protection against adverse costs does not apply.
  • The Legal Aid Commission of NSW will pay adverse costs up to the maximum amount payable at the time of the adverse costs order, subject to the exceptions set out in s 47(3), (3A) and (4) of the Act.
  • The maximum amount changes from time to time by resolution of Legal Aid NSW and is currently $15,000.
  • The legally assisted person will be liable for any costs ordered to be paid in excess of the maximum amount.

3. Written notice to other parties to proceedings about the effect of s47 of the Act

3.1 - Notice of grant of aid to other parties to proceedings

Under s 34(6) of the Act a legally assisted person's legal practitioner must provide any other parties to the proceedings notice that the legal practitioner is acting for a legally assisted person. No notice is required in criminal proceedings.

3.2 - How to give a Notice under s34(6)

A notice given under s 34(6) of the Act:

  • must be in writing,
  • must contain a reference to the effect of s 47 of the Act, and
  • may be given in any manner authorised for service of process in the proceedings to which the notice relates. See s 34(8) of the Act.

3.3 - When should a Notice under s34(6) be given?

A notice under s 34(6) of the Act must be given as soon as practicable after the commencement of the proceedings.

3.4 - Confirmation of s34(6) Notice to Legal Aid NSW

Under s 34(7) of the Act a private legal practitioner must advise Legal Aid NSW that the notice under s 34(6) of the Act has been given to the other parties to the proceedings. The notice must be in writing and given to Legal Aid NSW within 7 days of giving the notice under s 34(6) of the Act.

When Legal Aid NSW officers assign matters to private legal practitioners they are to remind the private legal practitioners of the requirements under ss 34(6), (7) & (8) of the Act.

4. Method of paying section 47 costs

The following procedure should be followed in relation to costs under section 47:

  • check costs are reasonable and relate to the grant of legal aid;
  • before agreeing to pay the costs of the successful party under s 47, Legal Aid NSW officers must examine the legal practitioner's account of costs and disbursements including counsel's fees to ascertain:
    • whether they consider the account to be reasonable, and
    • that all costs, disbursements and counsel's fees relate to work after the date of the grant of legal aid.
  • if an agreement cannot be reached as to whether the account is reasonable, the bill of costs will need to be assessed.

4.1 - s36(1)(b) contribution paid to successful party

Before making any payments under s 47 of the Act, Legal Aid NSW must ascertain whether any contribution assessed under s 36(1)(b) of the Act has been paid to the successful party. If the contribution has been paid, Legal Aid NSW officer must pay the successful party the balance of costs up to the monetary limit.

4.2 - Contribution outstanding

If the contribution is still outstanding, Legal Aid NSW must attempt to recover the contribution from the legally assisted person before paying the successful party.

4.3 - What if a legally assisted person fails to pay a contribution

If the legally assisted person fails to pay the contribution, Legal Aid NSW is obliged to pay the full amount due to the successful party without any deduction for the outstanding contribution.

4.4 - Recovery of contribution

The outstanding contribution will have to be recovered from the legally assisted person under s 36(3) of the Act.

See Contributions chapter for information on collecting contributions.

4.5 - Who do you pay?

Where a s 47 payment is made, the cheque must be drawn in favour of the party in whose name the court made the order for costs and forwarded to their legal practitioner.

The cheque is not to be made payable to the successful party's legal practitioner unless there is an authority to that effect.

The exception is when a successful party is also legally assisted. In such cases the procedure below is to be followed.

If the successful party's legal practitoner is unknown

If the identity of the successful party's legal practitioner is not known the cheque may be forwarded to the legally assisted person's legal practitioner with instructions to forward the cheque to the successful party.

If the successful party is also legally assisted

Where the successful party to the proceedings is also legally assisted:

  • appropriate journal entries are to be made instead of drawing a cheque in favour of the successful party;
  • the date of the grant of legal aid to the unsuccessful legally assisted person is the appropriate date for calculating the amount payable by Legal Aid NSW under s 47 of the Act.