Legal Aid NSW Policy Online
Document Type: Policy
Chapter:13. Legal Aid Review Committee Appeals


13.1. Introduction

Under s56 of the Legal Aid Commission Act 1979 (NSW) (the Act) a legal aid applicant or a legally assisted person may appeal a decision in relation to an application or a grant of legal aid to a Legal Aid Review Committee ("LARC"). Legal Aid NSW has established six Legal Aid Review Committees under s53 of the Legal Aid Commission Act 1979 (NSW) which are responsible for determining appeals made by legal aid applicants or legally assisted persons. The Committees determine appeals about legal aid applications and grants of legal aid. Three of the Committees, the Family Law Legal Aid Review Committees, specialise in appeals in family law matters.

This chapter sets out, among other things, the appeal process, the types of decisions that can and cannot be appealed, the timeframe for appealing and how to appeal. The guidelines assist in applying the policy on appealing against determinations of legal aid and in managing files that are being prepared for an appeal to a Legal Aid Review Committee.



Date Last Published: 22/12/2016

13.2. The appeal process

13.2.1 Redetermination

Under s34(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:

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: s34(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: s34(2).

While all decisions can be redetermined, not all decisions carry a right of appeal to a Legal Aid Review Committee. See 13.4 of this policy for a list of decisions that do not carry a right of appeal.


13.2.2 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 13.3 for a list of the types of decisions that can be appealed. See section 13.4 of this policy for a list of the types of decisions that carry no right of appeal.


Date Last Published: 22/12/2016

13.3. The types of decisions that can be appealed to a Legal Aid Review Committee

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

Under s56 of the Act, a legal aid applicant or a legally assisted person can appeal the following decisions:

There are, however, a number of exceptions to these provisions. See 13.4 for a list of decisions that do not carry a right of appeal to a Legal Aid Review Committee.


13.3.2 What is a variation of a grant of legal aid?

A grant of legal aid may be varied by:

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

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


Date Last Published: 22/12/2016

13.4. When there is no right to appeal to a Legal Aid Review Committee

The following circumstances set out when a legally assisted person or a legal aid applicant cannot appeal a decision in relation to a grant of legal aid.


13.4.1 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:

See ss34(3)(b) and 56(1A) of the Act.


13.4.2 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 s56(1A)(b) of the Act


13.4.3 Fees on a lump sum basis

There is no right of appeal against a decision to pay a private legal practitioner a lump sum fee, as this is not a condition or variation of a grant of legal aid.

See s34C of the Act.


13.4.4 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 s12, s34(4A) and 56(1AA) of the Act.

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


Date Last Published: 22/12/2016


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13.5. How to appeal to a Legal Aid Review Committee

13.5.1 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:

See ss34(2) and (4),38(2) and (4), and 47(5) and (6) of the Act.

See Guideline 6.3 for information on the procedures that need to be followed in preparing an appeal for a Legal Aid Review Committee.


13.5.2 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:

The appeal should:

See Guideline 6.2.


13.5.3 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 Guideline 6.2.


13.5.4 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 Guideline 6.2.


13.5.5 When does an appeal lapse?

An appeal to the Legal Aid Review Committee lapses if after an appeal is lodged against a decision to:

Legal Aid NSW either:

See Act chapter at s56 of the Act for further information on appeals.


Date Last Published: 22/12/2016

13.6. When proceedings can be adjourned pending an appeal to a Legal Aid Review Committee

13.6 When proceedings can be adjourned pending an appeal to a Legal Aid Review Committee 
 

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 s57 of the Act, may apply for an adjournment of the proceedings pending the hearing of the appeal.

Under s57 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:




Date Last Published: 27/05/2015

13.7. Assigning a matter following a successful appeal to a Legal Aid Review Committee

13.7.1 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.


13.7.2 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.


13.7.3 Table setting out how to assign a matter following a successful appeal

The following table represents the information set out in 13.7.1 and 13.7.2:

Application submitted by:

LARC Appeal submitted by:

Grant assigned to:

Private Practitioner A

Private Practitioner A

Private Practitioner A

Private Practitioner A

Private Practitioner B

Private Practitioner B

Private Practitioner A

Appellant (client)

Private Practitioner A

In-house solicitor A

In-house solicitor A

In-house solicitor A

In-house solicitor A

Private Practitioner A

In-house solicitor A

In-house solicitor A

Appellant (client)

In-house solicitor A

13.7.4 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.



Date Last Published: 22/12/2016
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13.8. Decision of the Legal Aid Review Committee is final

Under s60 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 Guideline 6.6 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 s34(1) of the Act may be relevant.


Date Last Published: 22/12/2016