Policies
12. Representation: Allocating Legal Work
12.2. Civil law matters
12.2.1 Civil law - generally
Decisions about representation
Legal aid may be granted in civil law matters on the condition that the legal aid applicant is to be represented by:
- an in-house legal practitioner
- a community legal centre (CLC), or
- a private legal practitioner nominated by Legal Aid NSW.
Any of these conditions may be imposed regardless of who lodged the application for legal aid.
Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However Legal Aid NSW may decide not to assign the grant of legal aid to the nominated legal practitioner.
No right of appeal
There is no right of appeal to a Legal Aid Review Committee (LARC) against a decision to provide legal aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.
See ss.34(4A) and 56(1AA) of the Act
What is the most cost effective service test?
In determining an application for legal aid in civil law matters, Legal Aid NSW must be satisfied that the legal practitioner (in-house or private) or Community Legal Centre (CLC) receiving the grant of aid will provide the most cost-effective service due to the expertise of the legal practitioner or CLC in conducting the type of matter for which legal aid is to be granted.
Referring the applicant to a CLC
Legal Aid NSW may determine on receiving an application for legal aid to assign the matter to a Community Legal Centre (CLC) that has expertise in the area of law for which aid is sought, for representation by the CLC. If the CLC agrees to represent the applicant the usual policy for grants of aid to that CLC will apply.
See CLC chapter for policies on granting legal aid to Community Legal Centres.
12.2.2 Human rights matters
If legal aid is granted in human rights matters it will be granted on the condition that the legal aid applicant is to represented by:
- an in-house legal practitioner
- a community legal centre (CLC), or
- a private legal practitioner nominated by Legal Aid NSW.
A matter will only be assigned to a private legal practitioner or CLC if Legal Aid NSW is satisfied that they will provide the most cost-effective service.
See 12.2.1(above) for general information on decisions about representation.
12.2.3 Guardianship Act matters
The Mental Health Advocacy Service (MHAS) provides representation for clients and administers and co-ordinates legal aid grants for:
- proceedings before the Guardianship Tribunal under the Guardianship Act 1987 (NSW), and
- appeals to the Administrative Decisions Tribunal (ADT) or the Supreme Court from decisions of the Tribunal.
In-house legal practitioners from the Legal Aid NSW MHAS will represent clients in proceedings before the Guardianship Tribunal and in appeals to the Administrative Decisions Tribunal and Supreme Court as follows:
- An applicant for legal aid who is the subject of the application will be represented by in-house legal practitioners from the MHAS where possible, unless there is a conflict of interest which prevents MHAS from representing the applicant.
- In-house legal practitioners from the MHAS will represent both the subject of the application and affected persons unless a conflict of interests arises, in which case the affected persons will have a private legal practitioner assigned to them by MHAS.
See 12.2.1(above) for general information on decisions about representation.
12.2.4 Mental health matters
Mental health matters will be retained by in-house legal practitioners from the Mental Health Advocacy Service (MHAS) and will only be assigned to private legal practitioners, if:
- an in-house legal practitioner is unable to conduct the matter, or
- there are exceptional circumstances.
An example of exceptional circumstances might be that there is a conflict of interest.
See 12.2.1(above) for general information on decisions about representation.
12.2.5 Certain Commonwealth civil law matters
These following matters:
- Commonwealth benefits, including pension, social security and allowances, and
- Reviews of decisions under the National Disability Insurance Scheme Act 2013, and
- immigration matters,
will only be assigned to specified private legal practitioner, if
- an in-house legal practitioner is unable to conduct the matter, or
- there are exceptional circumstances.
Note: Only in-house legal practitioners at Legal Aid NSW will provide representation in matters granted under Civil Law Policy 6.18.5 Visa applications and representation in the AAT (M&RD)
See 12.2.1(above) for general information on decisions about representation.
Date Last Published: 14/09/2018