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Grants allocation guidelines

The following principles apply to the assignment of work under a grant of legal aid to private legal practitioners under section 12(f) of the Legal Aid Commission Act 1979 (NSW).

A. Criminal Law matters

1. General

  1. Criminal law matters will be assigned to the Legal Aid NSW in-house legal practice wherever possible, subject to Legal Aid NSW Policies.

  2. Where an in-house practitioner is unable to act, the matter will be assigned to a private practitioner. Unless there are exceptional circumstances as set out in Part C of these Guidelines, the private practitioner must be a member of the relevant Legal Aid NSW private practitioner panel.

  3. Where a legal practitioner has been removed or suspended from a specific Legal Aid NSW panel (under s52A(6) or s52B(11) of the Legal Aid Commission Act), that practitioner will not be assigned any legal aid work in relation to that panel. This applies even where the Exceptional Circumstances set out in Part C of the Guidelines exist.

  4. If the matter is to be assigned to a private practitioner and the client has expressed a preference for a particular panel practitioner, the matter will be assigned to that practitioner.

    Legal Aid NSW will be satisfied that a panel practitioner is the client’s preferred practitioner where that practitioner has submitted the client’s application for legal aid via the Grants Online system.

  5. If the matter is to be assigned to a private practitioner and the client has not expressed a preference for a particular panel practitioner through that practitioner submitting the client's application via the Grants Online system, the matter will be offered to panel practitioners via Grants Online, unless

    (a) the matter is urgent: see point 5; or
    (b) there are exceptional circumstances: see point 6.

    For matters not within (a) or (b), the offer will be made via Grants Online to practitioners who service the court where the proceedings are being heard. If the matter is not accepted by any of the practitioners receiving the offer, further offers may be made via Grants Online, until the matter is accepted.

    For the purpose of determining which panel practitioners service the court where the proceedings are being heard, Legal Aid NSW will allocate practitioners to regions based on the business address of the practitioner's principal office.

  6. (a) Where a matter has been assigned to the Legal Aid NSW in-house practice, and the matter is to be assigned to a panel practitioner, a matter will only be “urgent” within these Guidelines if, at the time of submission of the Request for Transfer, the matter is listed for defended hearing within the next ten working days. If the matter is urgent, the matter will be assigned by the Grants Division to the panel practitioner nominated by the in-house practice on the Request for Transfer, unless the Grants Division is not satisfied that these Guidelines have been complied with.

    Through monitoring of Requests for Transfer, the senior criminal practitioner in each location is responsible for ensuring that a fair and reasonable distribution of urgent work to private practitioners on the list of panel practitioners applicable to that location, is achieved.

    (b) Where a matter which has not previously been assigned to the in-house practice is being assigned to a panel practitioner, the matter will be urgent if the matter is listed for defended hearing within the next ten working days. If the matter is urgent, the matter will be offered by the Grants Division to an individual panel practitioner who is available to service the court in which the proceedings are being heard, and if necessary to further practitioners, until the matter is accepted.

  7. If there are exceptional circumstances as set out in Part C of these Guidelines, the matter will be offered by the Grants Division to either

    (a) a non-panel practitioner, or

    (b) an individual panel practitioner who services the court where the proceedings are being heard, and if necessary to further practitioners, until the matter is accepted.

    In choosing the practitioner, the Grants Division will take into account any comments made by the in-house practice on the Request for Transfer. The in-house practice is not to engage a practitioner prior to submitting the Request for Transfer and is not to nominate a particular practitioner in the Nominated Office / Practitioner field on the Request.

  8. If the Grants Division is not satisfied that these Guidelines have been complied with, the Grants Division may offer the matter to the panel practitioner who is at the top of the list for the relevant panel and who services the court where the proceedings are being heard. If that practitioner is unable to act or is unable to be contacted, the matter may be offered to the panel practitioner who is second from the top of the list, and subsequent practitioners, until the matter is accepted.

2. Complex criminal law matters

  1. Complex criminal matters include:
  • All Supreme Court trials and pleas;
  • Manslaughter trials and pleas;
  • Matters where the maximum penalty is life imprisonment;
  • Matters where the trial is complex because of the nature of the charge or the defence. For example: sex slavery, fraud or money laundering charges where there are more than 30 counts and/or the total value is more than $500,000;
  • Trials identified by the trial judge as requiring significant case management pursuant to s.141 of the Criminal Procedure Act 1986;
  • Where the trial length is estimated at 20 days or more;
  • Where the brief of evidence is more than 5,000 pages;
  • All terrorism matters; and
  • Sexual assault trials where there are multiple complainants and/or multiple defendants.
  1. In special circumstances, matters that would normally be covered by the General Criminal Law Panel may be assigned to practitioners appointed to the Serious Criminal Law Panel.

    Special circumstances include where the matter is a complex criminal matter or as determined by the Director Grants or delegate, or Director Criminal Law or Deputy Director Criminal Law.

3. Briefing Counsel

  1. A practitioner authorised by Legal Aid NSW to brief a barrister will brief:

    (a) a Public Defender, unless a Public Defender is not available or it is not appropriate: see point 2; or

    (b) a barrister having appropriate experience: see point 3 and 4.

  2. Legal Aid NSW may determine from time to time the circumstances in which it is not appropriate to brief a Public Defender—for example, at District Court circuit sittings not serviced by a Public Defender.

  3. For a complex criminal matter, where junior counsel is briefed, a barrister having appropriate experience is a barrister who has been appointed to the Specialist Barrister Panel (Complex Criminal Law), unless there are special circumstances as determined by the Director Grants or delegate, or by the Director Criminal Law or Deputy Director Criminal Law.

  4. For an appeal to the Supreme Court, including the Court of Criminal Appeal, or to the High Court, where junior counsel is briefed, a barrister having appropriate experience is a barrister who has been appointed to the Specialist Barrister Panel (Criminal Appellate Matters), unless there are exceptional circumstances as determined by the Director Grants or delegate, or by the Director Criminal Law or Deputy Director Criminal Law.

  5. The senior criminal practitioner at each location is responsible for ensuring that a fair and reasonable distribution of work to barristers having appropriate experience is achieved in the criminal law practice.

  6. Consistent with the New South Wales Government Equitable Briefing Policy for Female Barristers and Advocates, Legal Aid NSW requires in-house and private practitioners to genuinely consider briefing female barristers.

B. Family and Civil Law matters

1. General

  1. Family and civil law matters may be assigned to an in-house practitioner, a community legal centre, or a private practitioner, subject to Legal Aid NSW Policies.

    Unless there are exceptional circumstances as set out in Part C of these Guidelines, the private practitioner must be a member of the relevant Legal Aid NSW private practitioner panel.

  2. Where a legal practitioner has been removed or suspended from a specific Legal Aid NSW panel (under s52A(6) or s52B(11) of the Legal Aid Commission Act), that practitioner will not be assigned any legal aid work in relation to that panel. This applies even where the Exceptional Circumstances set out in Part C of the Guidelines exist.

  3. If the legally assisted person has expressed a preference for a particular panel practitioner, the matter will be assigned to that practitioner.

    Legal Aid NSW will be satisfied that a panel practitioner is the legally assisted person’s preferred practitioner where that practitioner has submitted the legally assisted person’s application for legal aid via the Grants Online system.
    Where a panel practitioner lodges an application for legal aid on paper, and it is determined that the applicant is eligible for legal aid, the grant of legal aid will in the first instance be referred to the Legal Aid NSW in-house practice. The grant will be assigned to the panel practitioner only if the in-house practice is unable to act in the matter.

  4. If the matter is to be assigned to a private practitioner and the client has not expressed a preference for a particular panel practitioner, the matter will be offered to a panel practitioner via Grants Online, unless

    (a) the matter is urgent: see point 4; or
    (b) there are exceptional circumstances: see point 5.

    For matters not within (a) or (b), the offer will be made via Grants Online to practitioners who service the court where the proceedings are being heard. If the matter is not accepted by any of the practitioners receiving the offer, further offers may be made via Grants Online, until the matter is accepted.

    For the purpose of determining which panel practitioners service the court where the proceedings are being heard, Legal Aid NSW will allocate practitioners to regions based on the business address of the practitioner's principal office.

  5. (a) Where a matter has been assigned to the Legal Aid NSW in-house practice, and the matter is to be assigned to a panel practitioner, a matter will only be “urgent” within these Guidelines if, at the time of submission of the Request for Transfer, the matter is listed for defended hearing within the next ten working days. If the matter is urgent, the matter will be assigned by the Grants Division to the panel practitioner nominated by the in-house practice on the Request for Transfer, unless the Grants Division is not satisfied that these Guidelines have been complied with.

    Through monitoring of Requests for Transfer, the senior family practitioner and the senior civil practitioner in each location are responsible for ensuring that a fair and reasonable distribution of urgent work to private practitioners on the list of panel practitioners applicable to that location is achieved, in the family and civil practices respectively.

    (b) Where a matter is being assigned to a panel practitioner, and has not been previously assigned to the in-house practice, the matter will be urgent if the matter is listed for defended hearing within the next ten working days. If the matter is urgent, the matter will be offered by the Grants Division to an individual panel practitioner who is available to service the court in which the proceedings are being heard, and if necessary to further practitioners, until the matter is accepted.

  6. If there are exceptional circumstances as set out in Part C of these Guidelines, the matter will be offered by the Grants Division to either

    (a) a non-panel practitioner, or

    (b) an individual panel practitioner who services the court where the proceedings are being heard, and if necessary to further practitioners, until the matter is accepted.

    In choosing that practitioner, the Grants Division will take into account any comments made by the in-house practice on the Request for Transfer. The in-house practice is not to engage a practitioner prior to submitting the Request for Transfer and is not to nominate a particular practitioner in the Nominated Office / Practitioner field on the Request.

  7. If the Grants Division is not satisfied that these Guidelines have been complied with, the Grants Division may offer the matter to the panel practitioner who is at the top of the list for the relevant panel and who services the court where the proceedings are being heard. If that practitioner is unable to act or is unable to be contacted, the matter may be offered to the panel practitioner who is second from the top of the list, and subsequent practitioners, until the matter is accepted.

2. Briefing Counsel

  1. A practitioner authorised by Legal Aid NSW to brief a barrister will brief a barrister having appropriate experience.

  2. The senior family practitioner and the senior civil practitioner at each location are responsible for ensuring that a fair and reasonable distribution of work to barristers having appropriate experience is achieved, in the family and civil practices respectively.

  3. Consistent with the New South Wales Government Equitable Briefing Policy for Female Barristers and Advocates, Legal Aid NSW requires in-house and private practitioners to genuinely consider briefing female barristers.

C. Exceptional circumstances

  1. A particular practitioner has a current case grant of legal aid and/or extensive history of representing the legally assisted person.

    Representation of an applicant for legal aid on a duty basis or in committal proceedings does not establish an extensive history of representation.

  2. A particular practitioner is already appearing at the relevant court on the relevant date for another legally assisted person.

  3. The legally assisted person has profound difficulties dealing with the legal system due to one or more of the following issues:
    • psychiatric condition
    • developmental or intellectual disability, or
    • physical disability

      and a particular practitioner has a level of skill or knowledge, beyond the ordinary level of skill or knowledge of practitioners on the relevant panel, that can assist in addressing the legally assisted person’s profound difficulties.

  4. Because of geographic distance or a lack of appropriate transport, the legally assisted person would be unable to attend appointments with the panel practitioner who would otherwise be assigned the grant.

  5. The matter requires assignment to an interstate legal practitioner.

  6. A practitioner at a community legal centre is available to conduct the matter and either:
    • the practitioner has an extensive history of representing the legally assisted person, or
    • the practitioner has a level of skill or knowledge, beyond the ordinary level of skill or knowledge of practitioners on the relevant panel, and the circumstances of either the client or the matter require that level of expertise, or
    • where the matter is care and protection litigation proceedings, the practitioner has been approved to undertake this work

Note: approval to undertake care and protection litigation work will only be given where the community legal centre practitioner has satisfied the selection criteria for the care and protection panel.

 

March 2015