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Costs recovery FAQs

  1. I've won! Should I apply for costs?
    Maybe. Legal Aid NSW supports practitioners making applications for costs only when there are good prospects of the application succeeding. You as the practitioner (or your counsel) will be in the best position to assess whether the legislative requirements for a costs order have been satisfied. The tests for Local Court costs applications are set out in s214 Criminal Procedure Act 1986 for summary matters, s117 for committals and s3 of the Costs in Criminal Cases Act for trial matters. An acquittal does not necessarily mean an award of costs is warranted – your client may just have been fortunate (e.g. if a prosecution witness does not attend) and should be happy with that result.
  2. Can I get an extension of the grant to apply for costs?
    Not the Local Court, as the Court will usually want to hear the application immediately after dismissal or withdrawal of the charges. If however, at the conclusion of a trial a costs application is made and the Court appoints a later date to hear it, Legal Aid NSW will extend the grant for the time needed to prepare any necessary submissions and attend on the costs hearing.
  3. I have a Local Court costs application that is likely to succeed. How much should I ask for?
    As s213 Criminal Procedure Act 1986 allows the Court to award costs that are just and reasonable you should ask the Court to award costs calculated at your normal commercial rates and for all time you spent on the matter – not just the time allowed under the grant. Section 42 of the Legal Aid Commission Act 1979 requires the Court to ignore the fact that a person is legally aided when making a costs determination. Be sure to prepare a simple schedule of the time spent in taking instructions, court attendances, preparation for hearing and attendance on hearing at that rate to hand up to the Magistrate on the day. Let Legal Aid NSW know the outcome.
  4. I just got a costs order (or costs certificate). What do I do now?
    Obtain the original costs certificate (if there is one) and don't lose it. Kindly ask the client to sign an assignment of the costs to Legal Aid NSW so we can claim them back (see attachment). Claim your costs on Grants Online in the normal manner. The Grants Costs Solicitor will be in touch to get some further information from you, arrange for payment of any additional costs that are due to you and will contact the Court or the Department of Justice to arrange reimbursement.
  5. How much money do I receive?
    The Legal Aid NSW criminal fee scale provides that practitioners usually get paid an uplift of 75% if costs are awarded in criminal proceedings. In some circumstances Legal Aid NSW will pay at 80% of the amount awarded by the Local Court if that works out more favourably for you. But Legal Aid NSW will not pay you any additional costs until you have provided us with all the information needed by Legal Aid NSW.
  6. My client's trial was abandoned on day 3 due to something that was not my client's fault and a Suitors' Fund Act certificate was issued. What do I do?
    You should send the original certificate and the client's assignment form to the Grants Costs Solicitor and claim for work done in the normal manner. If there is insufficient time left on the grant to complete the new trial apply for an extension. There is no costs uplift payable in this situation.
  7. I got a costs award against the other party in an AVO case. Do I get paid at the higher rate by Legal Aid NSW?
    There is no provision for practitioners to be paid more costs in AVO matters because those costs are rarely recovered from the other party. If however you are able to extract the costs from the costs creditor and send them to Legal Aid NSW we will pay you the uplift.
  8. My client's trial was no-billed before the scheduled hearing date. Can I apply for costs?
    Possibly. An application for a Costs in Criminal Cases Certificate can be made at any time after arraignment, but see the answer to 1 above about the application for costs having reasonable prospects. Of course the fact that a charge was no-billed at a very early stage does hint at the prosecution having been an unreasonable one for the DPP to undertake.