Legal Aid Review Committee appeals guidelines

6.1.1 - Where is the appeal to be sent?

The legal aid applicant or legally assisted person should send the appeal by post, fax or email to the address or contact number provided on the refusal/termination letter.

When an appeal is lodged, an officer of the Grants Division of Legal Aid NSW is responsible for preparing and submitting a  report to the Legal Aid Review Committee (LARC Report).

For in-house matters, the in-house solicitor who made the decision being appealed is required to assist with the preparation of the LARC Report. This will include providing details of their recommendation regarding the appeal, the relevant policies and guidelines that the recommendation is based on, and any supporting material used in the decision-making process.

An officer of the Grants Division of Legal Aid NSW is not required to prepare a LARC Report for appeals lodged with respect to decisions that explicitly do not carry a right of appeal under ss 56(1A) & ss 56(1AA) of the Legal Aid Commission Act 1979 (NSW).

See LARC guideline 6.2.7 for guidance on handling such appeals.

6.2.1 - What to include in the LARC Report

When an appeal is lodged, an officer of the Grants Division of Legal Aid NSW is responsible for preparing and submitting a  report to the Legal Aid Review Committee (LARC Report).

For in-house matters, the in-house solicitor who made the decision being appealed is required to assist with the preparation of the LARC Report. This will include providing details of their recommendation regarding the appeal, the relevant policies and guidelines that the recommendation is based on, and any supporting material used in the decision-making process.

An officer of the Grants Division of Legal Aid NSW is not required to prepare a LARC Report for appeals lodged with respect to decisions that explicitly do not carry a right of appeal under ss 56(1A) & ss 56(1AA) of the Legal Aid Commission Act 1979 (NSW).

See LARC guideline 6.2.7 for guidance on handling such appeals.

6.2.2 - Dates of hearings

The date of hearing of a matter or other relevant court attendance date must be noted in the LARC report, including any court dates which have passed.

If the court date has passed by the time the Legal Aid Review Committee meets, the Legal Aid NSW solicitor rostered to assist and advise the Committee must contact the solicitor with carriage of the matter to obtain the details of what occurred at the court attendance and subsequently (if applicable) so they can report to the Committee.

It is important that the Legal Aid Review Committee has the most up to date information as the Committee stands in the shoes of the determining officer.

6.2.3 - Does the content of the LARC report address relevant issues?

LARC reports must address issues which are clearly relevant and have been raised by the appellant. As the Legal Aid Review Committee stands in the shoes of the determining officer, the Committee must be provided with all relevant material that the determining officer used to make their decision, plus all additional material provided by the appellant with their appeal.

6.2.4 - Additional support material to be included with LARC report

The Committee must be provided with all the material the determining officer used to make the decision being appealed.

In addition to this, the Committee can be provided with any other material that is readily accessible and relevant to the appeal, including additional material provided by the appellant in support of the appeal.

Regardless of the reason for the refusal/variation, the Legal Aid Review Committee must be given all material necessary to make a decision on:

• the test of whether it is a matter for which legal aid is available;
• means;
• merit (if appropriate).

Relevant sections of Legal Aid NSW policy or guidelines should be copied and pasted into the report from Policy Online.

The following list contains (but is not limited to) some of the primary documents to include as support material.

Discretions

The Committee also needs to know what discretions were available in relation to the decision being appealed, so that they can determine whether relevant discretions are to be exercised.

See Delegation Instrument for relevant delegations.

6.2.5 - Summarise when large amount of support material

It would assist the members of the Legal Aid Review Committee if material could be summarised in some way; for example:

• lengthy court transcripts should be summarised, or
• an index or chronology should be provided where many individual documents are annexed.

If this summary material is not provided, in some cases the report and file may be returned to the officer who prepared the report for amendment.

6.2.6 - Has the correct Legal Aid NSW policy been applied?

While the solicitor rostered to assist and advise the Legal Aid Review Committee is required to read and understand the LARC reports and the policies applied in those matters, determining officers should ensure they have applied the correct policy in the first place.

6.2.7 - Has the appellant a right to appeal?

LARC policy 6.7.3 When there is no right to appeal to a Legal Aid Review Committee sets out the circumstances when a legally assisted person or a legal aid applicant cannot appeal a decision in relation to a grant of legal aid.
These circumstances include decisions which explicitly do not carry a right of appeal to LARC under ss 56(1A) & ss 56(1AA) of the Legal Aid Commission Act 1979 (NSW) including:

• failing the Means Test in Local Court criminal matters,
• contributions imposed in Local Court criminal matters, and
• where Legal Aid NSW nominates a particular legal practitioner to represent the legally assisted person.

To maintain the independence of LARC, the appeal is to be forwarded to LARC and the appellant notified by the LARC Secretariat that there is no right of appeal to LARC against the decision.

The procedure for alerting the LARC Secretariat is set out in the Grants Division Procedures Manual.

6.2.8 - Forwarding the LARC Report and other material to the Legal Aid Review Committee Secretariat

Grants officers forward to the LARC Secretariat copies of all documents that are on the electronic ATLAS file, including:

• the LARC report;
• the appeal form;
• material in support;
• all extensions;
• any correspondence/emails.

The deadline for receipt of appeals is the Monday of the week prior to the Legal Aid Review Committee meeting. On that Monday the Legal Aid Review Committee Secretariat prepares and circulates the Agenda for meetings.

Late submissions will be held over until the next agenda, except in urgent matters: See LARC guideline 6.4 below.

A list of LARC meeting dates and deadline for file submissions are available from the Legal Aid Review Committee Secretariat.

Urgent appeals must be approved by:

• the Manager Operations of the Grants Division matter, or
• in the absence of the Manager Operations, the Director Grants,

48 hours before the next meeting. This time is needed for the Secretariat to arrange for the papers to be delivered to the Committee members and for the members to read them.

Where an appeal in relation to an in-house matter is urgent, the in-house solicitor should contact the Senior Solicitor for the relevant area of law in the Grants Division and request that a LARC Report be prepared urgently.

The Legal Aid Review Committee Secretariat will endeavour to place such matters on the next appropriate Legal Aid Review Committee agenda provided that it is received at least 48 hours before the next meeting.

There are times when the Legal Aid Review Committee is unable to come to a decision in relation to a particular appeal because it requires additional information. In such situations, the Legal Aid Review Committee defers making a decision and the matter is referred back to the Legal Aid Review Committee Secretariat so that the additional material can be requisitioned within a time specified by the Committee.

6.5.1 - Role of the Legal Aid Review Committee Secretariat when a Committee has deferred a decision

In a situation where a Legal Aid Review Committee has deferred an appeal, the Legal Aid Review Committee Secretariat will:

• notify the in-house or assigned practitioner (and where applicable, the appellant) advising them of the deferral;
• if requesting advice in relation to merit, notify the Grants Divisions;
• scan and attach any hard copy paper documents generated as part of the Legal Aid Review Committee process to the ATLAS file if not attached already;
• retain all relevant paperwork in the matter.

6.5.2 - Role of the Grants Division upon receipt of further information

The requested information will be received by the Grants Division. Once it is received, a Grants solicitor will re-determine the decision based on the new information provided.

Under s 56(1B) of the Legal Aid Commission Act 1979 (NSW), an appeal lapses when aid has been granted on a re-determination.

If the Grants solicitor decides to reverse the original decision, they must:

• notify the Legal Aid Review Committee Secretariat of the reversal; and
• scan and attach to the file all documents received.

If the Grants solicitor decides not to reverse the decision, they must:

• scan and attach to the file all documents received;
• forward the additional information received to the Legal Aid Review Committee Secretariat in hard copy format with an attached memorandum briefly explaining what is included in the material, what appeal it relates to, and the name of the Legal Aid Review Committee (No. 1, 2, or 3 or the Family Law Review Committee No 1 or 2) to which the appeal is to be resubmitted.

6.5.3 - Where no response has been received to a requisition for further information

If the information requested is not received within:

• the timeframe set by the Committee (usually six weeks), or
• within reasonable time,

a Grants solicitor will be assigned the task of sending a follow-up letter to the appellant/legal practitioner.

If the information still does not arrive as requested, a Grants solicitor will inform the Legal Aid Review Committee Secretariat of this development.

The Legal Aid Review Committee Secretariat will then refer the appeal back to the Legal Aid Review Committee with an attached memorandum outlining the events and current status.

6.5.4 - Appeal withdrawn by appellant

If the Grants Division is informed about a withdrawal of an appeal the Grants solicitor assigned the task must inform the Legal Aid Review Committee Secretariat of the withdrawal so that the matter can be tabled and noted by the Legal Aid Review Committee.

In addition to a member of the Secretariat attending Legal Aid Review Committee meetings, one Legal Aid NSW officer must also attend each of the meetings of the Legal Aid Review Committee.

The role of the attending Legal Aid NSW officer is to:

• advise on the current policies and procedures of Legal Aid NSW;
• assist the Committee in making valid determinations;
• assist the Legal Aid Review Committee Secretariat by ensuring material before the Committee is complete and up to date.

Reading the agenda

Before attending a meeting the officer must read the Committee's agenda to identify matters where the Committee may require assistance.

For example the officer should note the following:

Hearing dates

If the hearing date has passed or is immediately after the Committee meeting, it is imperative that the officer contacts the person who prepared the report to the Committee.

The officer must ascertain:

• whether the matter has concluded, or
• the degree of urgency.

Content of material

If a report to the Review Committee does not address issues which are:

• relevant, or
• have been raised by an appellant

the officer is to:

• review the legal aid file, and
• if necessary, to clarify any issues, contact the person who prepared the report.

Incorrect application of policy

If the person determining the application has applied the incorrect policy or Means Test the file is to be returned to the Grants Division for the matter to be reconsidered based on the correct policy or means test.

Result of enquiries

The officer is to advise:

• the Legal Aid Review Committee Secretariat before the meeting, or
• the Committee in the course of the meeting

the result of any enquiries carried out.

Independence of the Legal Aid Review Committee

Natural justice

If a Legal Aid NSW officer acts in a way that affects the decision of a Legal Aid Review Committee, the determination by the Committee could be set aside by a court because of a denial of natural justice to the appellant: see Automatic Ticket Research v Legal Aid Commission of New South Wales(1991) 22 ALD 590.

Legal Aid NSW officers must take care not to prejudice the independence of the Committee. Generally, the officer is to confine participation in discussion to:

• answering questions and assisting the members on the application of the policy,
• providing additional material or information, and
• assisting the Committee to prepare a resolution in accordance with its intentions.

Questions

If a Legal Aid NSW officer has any queries about:

• their duties, or
• a particular matter

the officer should contact the Solicitor to Legal Aid NSW or the Legal Policy Branch.

Unable to attend meetings

If an officer is unable to attend, they are to arrange for another officer to attend.

6.7.1 - What is a quorum?

Legal Aid NSW has determined that a quorum for a Legal Aid Review Committee meeting is two members, one of which must be a lawyer.

Where a member abstains from consideration of a matter because they have an interest in the matter, that member cannot be included for the purpose of making up a quorum.

Similarly, if a member or members leave the meeting, the meeting may only continue if there are at least two members still present, one of which must be a lawyer.

6.7.2 - Appellant cannot attend meetings

Legal Aid NSW has determined that appellants or their legal advisers are not permitted to address the Legal Aid Review Committee in person.

6.7.3 - Record of Legal Aid Review Committee Resolution

Legal Aid NSW has determined that appellants or their legal advisers are not permitted to address the Legal Aid Review Committee in person.

6.7.4 - Role and responsibilities after meetings

In the situation where the Legal Aid Review Committee has allowed an appeal, the Legal Aid Review Committee Secretariat will:

• record on ATLAS that the appeal has been allowed;
• record the Committee's decision on ATLAS;
• scan and attach to the ATLAS file any hard copy paper documents generated as part of the Legal Aid Review Committee process that are not already on the file; and
• destroy all paper material used in the Legal Aid Review Committee process by placing it in a locked security bin.

6.8.1 - Current membership of committees as at 9 June 2023

Legal Aid Review Committee No. 1

Ms Lucy Pinnock

Ms Helen Maamary

Ms. Anna Johnson

Ms Jane Sanders

Ms Kelly Stares

Mr Paul Blacket SC

Ms Angela Stewart         

Ms Anna Buduls

Legal Aid Review Committee No. 2

Mr Brett Thomson          

Ms Kathleen Hainsworth

Ms Stephanie Koch

Ms Anne Healey              

Mr Andrew Boog

Ms Karen McLean

Mr Donald Sword            

Ms Anna Buduls

Legal Aid Review Committee No. 3

Ms Ellyse McGee            

Ms Hannah Roberts

Ms Tram Nguyen

Mr Richard Pontello SC 

Mr Nicholas Broadbent

Mr Jonathan Prowse

Mr Philip O’Keefe

Ms Anna Buduls

Family Law Legal Aid Review Committee No. 1

Mr Christopher Frommer            

Ms Emma Moss

Ms Greta Bromwich

Ms Lorelle Longbottom

Ms Michelle Hayward

Mr Gregory Kenny

Ms Elena Berrocal Capdevila      

Ms Lina Rapone

Family Law Legal Aid Review Committee No. 2

Mr Nick Mitrevski

Ms Hannah Fordham

Ms Emily Azar

Ms Joplin Higgins             

Mr Christopher Othen

Ms Michelle Meares

Ms Melanie Faithful       

Ms Kathleen Lamoureux

Family Law Legal Aid Review Committee No. 3

Mr David Nguyen            

Ms Nicole Hailstone

Mr Patrick Mullane

Ms Claire Cantrall            

Dr Martha Barnett

Ms Kayte Lewis

Dr Stephen van der Mye              

Ms Lina Rapone

6.8.2 - Legal Aid Review Committee Secretariat

T: (02) 9219 5880 (select option 5) 
F: (02) 9219 5038
E: larc@legalaid.nsw.gov.au
PO Box K847 Haymarket NSW 1238