6.7 Legal Aid Review Committee Appeals

6.7.1.1 - Redetermination

Under s 34(1) of the Act, Legal Aid NSW may at any time reconsider an application for legal aid that has been refused. This process is called redetermination.

A decision may be redetermined because a legal aid applicant or legally assisted person:

• has provided additional submissions or other material to Legal Aid NSW following the making of a determination about a grant of legal aid or a decision to terminate aid; or
• has appealed to a Legal Aid Review Committee (LARC) following the making of a determination about a grant of legal aid or a decision to terminate aid. See LARC policy 6.7.4. How to appeal to  to the Legal Aid Review Committee.

If Legal Aid NSW receives notice of an appeal to a Legal Aid Review Committee, a Legal Aid NSW officer will undertake a redetermination of the decision being appealed against first.

If the officer undertaking a redetermination decides that the original decision should be changed, Legal Aid NSW will inform the appellant within 14 days that the appeal has been successful: s 34(2).

If on the other hand the officer making the redetermination decides not to change the original decision, and the decision carries a right of appeal to a Legal Aid Review Committee, the appeal will be referred to a Legal Aid Review Committee. Legal Aid NSW will inform the appellant about the referral within 14 days: s 34(2).

While all decisions can be redetermined, not all decisions carry a right of appeal to a Legal Aid Review Committee. See LARC policy 6.7.3 When there is no right to appeal to a Legal Aid Review Committee.

6.7.1.2 - Appeal to a Legal Aid Review Committee

The right of a legal aid applicant or legally assisted person to appeal to a Legal Aid Review Committee against a decision made by Legal Aid NSW is contained in s56 of the Act.

Not all decisions can be appealed, however. See LARC policy 6.7.2 The types of decisions that can be appealed to a Legal Aid Review Committee for a list of the types of decisions that can be appealed. See LARC policy 6.7.3 When there is no right to appeal to the Legal Aid Review Committee.

6.7.2.1 - What types of decisions can an applicant for legal aid or a legally assisted person appeal?

Under s 56 of the Act, a legal aid applicant or a legally assisted person can appeal the following decisions:

• a determination or redetermination, of an application under s 34 of the Act;
• the variation of a grant of aid determined under s 38 (1) of the Act;
• the redetermination of a variation of a grant of legal aid which terminates the grant of aid under s 38 (1AA) of the Act; or
• a decision to decline payment of the whole or any part of costs under ss 47 (4) or (4A) of the Act.

There are, however, a number of exceptions to these provisions. See policy 6.7.3 When there is no right to appeal to a Legal Aid Review Committee for a list of decisions that do not carry a right of appeal to a Legal Aid Review Committee.

6.7.2.2 - What is a variation of a grant of legal aid?

A grant of legal aid may be varied by:

• terminating a grant of legal aid, or
• changing the nature and extent of the legal aid by
  • making the grant subject to certain conditions or an additional condition, including requiring a legally assisted person to pay a contribution, or
  • changing a condition of the grant of legal aid, including the amount of a contribution.

See Act Chapter on s38 for commentary on terminating legal aid.

Legal Aid NSW officers authorised under the Delegation Instrument clause 20 can terminate a grant of legal aid.

6.7.3.1 - Not satisfying the Means Test in certain types of matters

There is no right of appeal against a decision to not grant legal aid because the applicant does not satisfy the means test if the application for legal aid is for:

• a Local Court criminal offence, or
• representation of a prisoner at
  • visiting justices proceedings,
  • Parole Authority hearing,
  • a life re-sentencing application, or
  • review of segregation directions.

See ss 34(3)(b) and 56(1A) of the Act.

6.7.3.2 - Contributions in Local Court criminal matters

There is no right of appeal against a decision requiring a legally assisted person to pay a contribution towards costs of providing legal aid if the application is for Local Court proceedings involving a criminal offence.

See Act chapter at s 56(1A)(b) of the Act.

6.7.3.3 - Fees on a lump sum basis

There is no right of appeal against a decision requiring a legally assisted person to pay a contribution towards costs of providing legal aid if the application is for Local Court proceedings involving a criminal offence.

See Act chapter at s 56(1A)(b) of the Act.

6.7.3.4 - Representation

There is no right of appeal against a decision to provide representation to a legally assisted person by an in-house legal practitioner, by a Community Legal Centre (CLC), or by arranging the services of the Public Defender, or by nominating a specified private legal practitioner.

See s 12, s 34(4A) and 56(1AA) of the Act.

See Representation chapter for policy on allocating and assigning matters between in-house and private legal practitioners.

6.7.4.1 - Legal Aid NSW must notify an applicant or legally assisted person of their right of appeal

Legal Aid NSW must notify a legal aid applicant or legally assisted person of their right of appeal. The notice of right of appeal must be:

• in writing, and
• sent to the applicant or legally assisted person within 14 days of the date of the decision to which it relates.

See ss 34(2) and (4),38(2) and (4), and 47(5) and (6) of the Act.

See LARC guideline  6.2 for information on the procedures that need to be followed in preparing an appeal for a Legal Aid Review Committee.

6.7.4.2 - How an appeal is lodged

The legally assisted person or legal aid applicant must put the appeal in writing.

This can be done by either:

• completing an appeal form, or
• writing a letter to the Legal Aid Review Committee and sending the form or letter to Legal Aid NSW.

The appeal should:

• set out the grounds on which they intend to appeal, and
• include their legal aid reference number.

See LARC guideline  6.2.

6.7.4.3 - Assistance with preparing appeals

In an in-house matter a legally assisted person or legal aid applicant may ask staff for help in preparing their appeal.

If possible, this help should be given by a legal officer at the office or section where the decision being appealed against was made, but not by the officer who made the original decision.

See LARC guideline  6.2.

6.7.4.4 - Timeframe for appeals

Legal Aid NSW must receive the appeal application within 28 days, starting from the date the legally assisted person or legal aid applicant receives the notice of right of appeal.

The Legal Aid Review Committee may extend the time for an appeal if satisfied that there are special circumstances.

Examples of special circumstances

Special circumstances may exist for example, where the applicant or legally assisted person has a medical condition that prevents them from completing the appeal on time, or because the appeal timeframe coincided with a period of religious observance during which time the client was unable to attend to certain tasks and duties.

See LARC guideline  6.2.

6.7.4.5 - When does an appeal lapse?

Legal Aid NSW must receive the appeal application within 28 days, starting from the date the legally assisted person or legal aid applicant receives the notice of right of appeal.

The Legal Aid Review Committee may extend the time for an appeal if satisfied that there are special circumstances.

Examples of special circumstances

Special circumstances may exist for example, where the applicant or legally assisted person has a medical condition that prevents them from completing the appeal on time, or because the appeal timeframe coincided with a period of religious observance during which time the client was unable to attend to certain tasks and duties.

See LARC guideline  6.2.

If a party to proceedings before a court or tribunal has appealed or intends to appeal to the Legal Aid Review Committee, that party, under s 57 of the Act, may apply for an adjournment of the proceedings pending the hearing of the appeal.

Under s 57 of the Act a court or tribunal is required to adjourn the proceedings to such date and on such terms and conditions that it thinks fit provided it is satisfied that:

• the party has appealed or intends to appeal to a Legal Aid Review Committee,
• the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
• there are no special circumstances that prevent the court or tribunal from adjourning the proceedings.

6.7.6.1 - Private Practitioner matters

Where a private practitioner submitted the original application as well as the appeal to a Legal Aid Review Committee and the appeal is successful, the grant will be assigned to that private practitioner.

Where a private practitioner submitted the original application but the appeal is submitted by a different private practitioner and the appeal is successful, the grant will be assigned to the private practitioner who submitted the appeal.

Where a private practitioner submitted the original application but the appeal is submitted by the appellant directly and the appeal is successful, the grant will be assigned to the private practitioner who submitted the original application.

Note: Different rules may apply for non-panel private practitioners. For further information refer to the Grants Allocation Guidelines.

6.7.6.2 - In-house matters

Where an in-house solicitor submitted the original application as well as the appeal to the Legal Aid Review Committee and the appeal is successful, the grant will be assigned to that in-house solicitor.

Where an in-house solicitor submitted the original application but the appeal is submitted by a private practitioner or the appellant directly and the appeal is successful, the grant will be assigned to the in-house solicitor who submitted the original application.

6.7.6.3 - Table setting out how to assign a matter following a successful appeal

6.7.6.4 - Reassignment of in-house matters when the appeal is from a decision based on merit

When a Legal Aid Review Committee upholds an appeal from a decision made on a ground of merit in relation to an in-house matter, there may be a conflict which prevents an in-house legal practitioner from continuing to act for the legally assisted person. That practitioner must assign the matter to a private legal practitioner.

Under s 60 of the Act, the decision of the Legal Aid Review Committee is final. Occasionally the Legal Aid Review Committee may refer a policy question arising out of an appeal back to Legal Aid NSW for guidance.

See LARC guideline  6.2 in relation to deferred appeals.

However, if a decision has been made by a Legal Aid Review Committee the decision is final and neither the Committee nor Legal Aid NSW will review the merits of that decision.

In cases where, new information comes to hand subsequent to the decision of the Legal Aid Review Committee, a redetermination of an application for legal aid under s 34(1) of the Act may be relevant.